Gujarat High Court
District Development Officer vs Dipak Kanubhai Dasadiya on 24 January, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21934 of 2023
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 21934 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 21968 of 2023
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 21968 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
Yes
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DISTRICT DEVELOPMENT OFFICER
Versus
DIPAK KANUBHAI DASADIYA & ORS.
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MS TANUSHREE SHRIMAL ASSISTANT GOVERNMENT PLEADER for
the Respondent(s) No. 2
MR HIMANISH J JAPEE(11295) for the Respondent(s) No.
5,6
MR MEET A SHAH(9933) for the Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 24/01/2025
COMMON ORAL JUDGMENT
1. Heard learned advocate Mr. H. S. Munshaw
appearing for the petitioner, learned advocate
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Mr. Meet A. Shah appearing for the respondent
No.1, learned Assistant Government Pleader Ms.
Tanushree Shrimal appearing for the respondents
No.2 and 3, learned advocate Mr. Premal R. Joshi
appearing for the respondent No.4 and learned
advocate Mr. Himanish J. Japee appearing for the
respondents No.5 and 6.
2. With the consent of learned advocates appearing
for the respective parties, matter was taken up
for final hearing. Hence, RULE. Learned advocate
Mr. Meet Shah, learned Assistant Government
Pleader Ms. Tanushree Shrimal, learned advocate
Mr. Premal Joshi and learned advocate Mr.
Himanish Japee waive the service of notice on
behalf of the respective respondents.
3. As except for the name, educational
qualification and date of appointment in respect
of respondent No.1 in both the matters rest of
the facts are same and hence, the facts are
taken from Special Civil Application No.21934 of
2023.
4. By way of this petition, the petitioner has
prayed for quashing and setting aside the order
dated 26.9.2023 passed by Gujarat Civil Service
Tribunal Gandhinagar allowing Appeal No.84 and
85 of 2023 preferred by both the respondent No.1
and thereby quashing and setting aside the order
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dated 4.8.2022 whereby the both the respondent
No.1 was reverted from the post of Deputy
Chitnis to the post of Senior Clerk.
5. Brief facts giving rise to the filing of present
petition are stated as under :-
5.1 Both the respondent No.1 who happens to
be original applicant before the Tribunal were
appointed in the year 2006 on different dates by
two separate appointment orders as Office
Assistant on ad-hoc basis with fixed salary.
5.2 In the year 2011, upon completion of
five years satisfactorily service, both the
private respondent No.1 were appointed as Junior
Clerk on regular basis.
5.3 On 4.1.2014, the respondent department
vide Notification dated 4.1.2014, prescribed the
Recruitment Rules for the post of Deputy Chitnis
Class-III in Superior Panchayat Service. In the
year 2017, both the respondents No.1 in both the
petitions were promoted to the post of Senior
Clerk and thereafter, they appeared in the
departmental examination taken by the petitioner
in the year 2021 and passed the aforesaid
departmental examination which is required for
promotion to the post Deputy Chitnis. The
aforesaid examination was conducted by
respondent No. 4 Board.
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5.4 The petitioners who were qualified for
promotion in terms of experience as well as
qualification by passing an examination meant
for promotion to Deputy Chitnis had cleared the
exams and therefore, the Departmental Promotion
Committee recommended the name of the present
petitioners for promotion while recommendation
dated 3.8.2021.
5.5 Vide communication dated 21.8.2021, it
was pointed out to the petitioner that as the
respondent No.1 in both the petitions were
lacking requisite experience but they were
having two third experience of the requisite
experience. It was communicated to the
petitioner to sent their names by way of a
proposal which was sent by passing a Circulating
Resolution dated 31.8.2021 whereby considering
the administrative exigencies and public
interest, the aspect of two third experience of
the prescribed experience of five years was
relaxed in case of the respondent No.1 and both
the respondent No.1 in both the petitions were
held qualified for the promotion and a fresh
proposal for promotion was sent. On 21.9.2021,
the respondent No.4 Board approved the proposal
made by the petitioner for promotion of four
Senior Clerk including respondent No.1 of both
Special Civil Applications to the post of Deputy
Chitnis.
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5.6 The petitioner promoted the respondent
No.1 in both the petitions to the post of Deputy
Chitnis vide order dated 27.9.2021. However, in
the promotion order a condition was incorporated
that the petitioners promotion is ad-hoc in
nature and upon availability of eligible
Seniors, the respondent No.1 would be reverted
to its original post of Senior Clerk.
5.7 The respondent No.1 in both the
petitions made representations to the Authority
and objected to the said condition No.1
mentioned in the order dated 7.9.2021. However,
the aforesaid efforts could not make any
difference and ultimately, on 1.1.2022, a
provisional Seniority list to the post of Deputy
Chitnis was prepared and name of the respondent
No.1 was not there in that list.
5.8 On 10.1.2022, both the respondent No.1
again made representations for inserting there
name in the Seniority list for the post of
Deputy Chitnis.
5.9 Ultimately, at the time when, Final
Seniority list was published on 10.2.2022, name
of both the respondent No.1 in both the
petitions were inserted in the final seniority
list.
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5.10 Thereafter, on 16.3.2022, the
Departmental Examination was conducted for the
year 2021-2022 between 7.1.2022 to 9.1.2022
wherein the then Seniors to the respondent No.1
appeared in the departmental examination and
were declared successful.
5.11 Thereafter, a proposal dated 9.6.2022
was made to the respondent-Board by the
petitioner for reversion of promotion of the
respondent No.1 which was approved on 28.7.2022
by the respondent-Board and the respondent No.1
was unilaterally reverted to the post of Senior
Clerk vide order dated 4.8.2022 by the present
petitioner on the ground that the then Seniors
to the present respondent No.1 have acquired the
qualification for being promoted to the post of
Deputy Chitnis from the post of Senior Clerk and
therefore, now they have acquired the
eligibility to be promoted to the post of Deputy
Chitnis.
5.12 In view of the fact that the respondent
were promoted. Thereafter, the respondent No.1
challenged the order dated 4.8.2022 reverting
the present respondent No.1 before this Court by
way of Special Civil Application No.16039 of
2022. However, the said petition was withdrawn
with a view to avail alternative remedy vide
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order dated 18.8.2022 and thereafter the
respondent No.1 preferred Appeal No.84 of 2022
and Appeal No.85 of 2022 before the Gujarat
State Civil Service Tribunal.
5.13 In the meantime, during pendency of the
aforesaid Appeal No.84 and 85 of 2022, the
petitioner had promoted respondent Nos.5 and 6
and thereafter, respondents No.5 and 6 preferred
an application for being implead as party in the
aforesaid Appeal No.84 and 85 of 2022.
Ultimately, they were heard and vide order dated
27.9.2023, both the appeals preferred by the
respondent No.1 were allowed and order dated
4.8.2022 was quashed and set aside by the
tribunal.
5.14 It is against the order dated 26.9.2023
of Tribunal whereby the order dated 4.8.2022
reverting the respondent No.1 was quashed, this
petition is preferred.
6. Learned advocate Mr. H.S. Munshaw appearing for
the petitioners made following submissions :-
6.1 That the petitioners original order of
promotion specifically indicates that the
petitioners promotion was purely on ad-hoc basis
and as and when, the qualified person Senior to
the petitioner is available, the respondent No.1
would be reverted. Despite the aforesaid
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specific condition, which was duly accepted by
respondent No.1, now, when the qualified person
was available and was promoted by the
petitioner, the respondent No.1 is questioning
the same but the same is not open to the
respondent No.1 in view of clear language of
promotion order.
6.2 It was also submitted by learned
advocate Mr. Munshaw that the persons who were
senior to the petitioner did not exhaust the
required number of attempts for passing the
qualifying Departmental Examination and once
they passed the qualifying Departmental
Examination within the prescribed number of
attempts in view of order of promotion
categorically stating that the respondent No.1
promotion is temporary and when a qualified
senior person is available, the respondent No.1
would be reverted. The respondents were not
legally correct in approaching the Tribunal and
putting forward their case as if they are
qualified for promotion despite the fact that
subsequently, their seniors have acquired the
qualification.
6.3 It was also pointed out by learned
advocate Mr. Munshaw that as respondent No.1
were junior to some senior persons who could not
clear the departmental examination at the time
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when the case for promotion was considered.
However, prescribed number of attempts were
still not over in respect of those persons and
therefore, if the respondent No.1, who is junior
to those persons, is continued to hold the
promotional post, in that case, it has created a
heart burning amongst the eligible senior
persons in the department and therefore, with a
view to rectify the aforesaid feelings amongst
the Senior Clerk the order dated 4.8.2022 was
passed. Even otherwise as per the condition of
the promotion order, the respondent No.1 were
required to be promoted and therefore, when the
promotion order had categorically stated that
promotion is absolutely on ad-hoc basis it does
not create any right in favour of the respondent
No.1 and therefore also, the impugned order is
required be quashed and set aside.
6.4 Learned advocate Mr. Munshaw also
pointed out that the concerned senior employees
who did not avail the prescribed number of
attempts at the relevant point of time,
subsequently cleared the examination within
prescribed number of attempt and therefore, it
cannot be said that those persons were
ineligible for promotion and therefore, when the
order of promotion amply clear, no right in
favour of respondent No.1 was created and
therefore, the Tribunal had committed material
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error by not appreciating the aforesaid aspect.
6.5 Learned advocate Mr. Munshaw submitted
that on both the occasions i.e at the time while
granting ad-hoc promotion to the petitioner as
well as while reverting them sought the advise
from the respondent No. 4 - Board and further
course of actions were taken as per the advise
of respondent No.4 Selection Board.
6.6 Learned advocate Mr. Munshaw further
submitted that the Tribunal has committed an
error by not considering the Circular,
Government Resolution. Learned advocate Mr.
Munshaw then submitted that the action of the
petitioner can be said to be justified in view
of Government Resolution dated 18.11.1969 issued
by General Administration Department of the
State which provides for mechanism for
calculating Seniority. However, learned advocate
Mr. Munshaw was fair enough in contending that
the aforesaid Government Resolution was not
placed before the Tribunal and therefore, the
Tribunal had no occasion to consider the matter
in light of above Government Resolution but this
Court in exercise of powers under Article 226 to
ensure that ends of justice are met may consider
the aforesaid Government Resolution.
6.7 Lastly, it was contended by learned
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advocate Mr. Munshaw that Rule 9 of the Rules,
(page 63) provides for ad-hoc promotion and as
per Rule 9, if a qualified person is not
available for promotion to the post of Deputy
Chitnis and becomes expedient to fill the post
in public interest and unqualified person
belonging to the cadre of Senior Clerk who has
not exhausted specified chances to pass the
examination may be promoted to the office at
Deputy Chitnis, subject to the condition that he
shall be reverted on the date of availability of
qualified person for promotion or on his failure
to pass the examination within the specified
period and chances whichever event occurs
earlier.
6.8 By pressing rule into service, learned
advocate Mr. H. S. Munshaw submitted that in
view of above rule, the petitioner considered
the case of respondent No.1 during the meeting
of Departmental Promotion Committee and as the
respondent No.1's promotion was considered under
Rule 9 which itself provides for ad-hoc
promotion. The petitioner challenged to the
order of reversion is absolutely misconceived
and therefore, when the Tribunal has ignored
this vital aspect, the Tribunal had committed a
material error and therefore also, the impugned
order is bad and deserves to be set aside.
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7. Learned advocate Mr. Meet Shah appearing for the
respondent No.1 made following submissions :
7.1 By way of Appeal No.85 of 2022 before
the Learned Tribunal, the respondents herein
challenged the most unjust, improper, illegal,
arbitrary, capricious and discriminatory order
dated 04.08.2022 passed by the petitioner,
whereby, both the respondent No.1 were
unilaterally reverted from the promotional post
of Deputy Chitnis to the post of Senior Clerk on
flimsy ground that the then seniors to the
respondent in cadre of Senior Clerk have
acquired the qualification to be promoted to the
post of Deputy Chitnis subsequent to promotion
of both the respondent No.1. The order dated
04.08.2022 was completely violative of the
provisions of law and Government Resolutions /
Circulars issued from time to time. Moreover,
the said order dated 04.08.2023 was passed
unilaterally and without affording any
opportunity of being heard to both the
respondent No.1.
7.2 It was submitted that after hearing all
the necessary parties, the learned Tribunal vide
judgment dated 26.09.2023 was pleased to allow
the appeal and the order dated 04.08.2022 was
quashed and set-aside by declaring the said
order dated 04.08.2022 as unreasonable, illegal,
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contrary to Rules and principles of natural
justice.
7.3 It is apparent from Rule 8 of the
Deputy Chitnis (Panchayat Service), Departmental
Examination Rules ,2002 that the seniors who may
pass the Departmental Examination after the
promotion of the juniors shall not be entitled
to claim seniority. Therefore, the order dated
04.08.2022 reverting both the respondent No.1 to
the post of Senior Clerk i.e. lower cadre on the
grounds of the then seniors having passed the
Departmental Examination subsequent to promotion
of both the respondent No.1 is rightly quashed
by the learned Tribunal as the same was against
the provisions of the Rule 8 of the Deputy
Chitnis (Panchayat Service), Departmental
Examination Rules, 2002.
7.4 It was submitted that the Rule 9 of the
Deputy Chitnis (Panchayat Service), Departmental
Examination Rules, 2002 envisages the provisions
for ad- hoc/ provisional promotion and as per
the said Rule, in case of non-availability of
qualified Senior Clerk for the promotion, the
Senior Clerk who is 'not qualified /
unqualified' for the promotion can be given ad-
hoc or provisional promotion with a condition
that such person shall be reverted on account of
the eligible candidate being available or having
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not passed the examination in prescribed
attempts, whichever is earlier. The word
'unqualified' is explained in the Rules which
means a person who has not passed the
examination as stipulated under the Rules. Thus,
the Rules do not contemplate that upon a
qualified person, though junior, being promoted
would be liable to be reverted upon seniors
passing the examination within stipulated time /
prescribed attempts but later than the juniors.
7.5 It was submitted that neither the
Examination Rules nor the Recruitment Rules
envisage a position that a person qualified
could be promoted on ad-hoc basis and would be
liable to be reverted upon qualified senior
persons being available. The Rule 9 of the
Examination Rules would only be applicable in
case of promotion of unqualified person. In
fact, bare perusal of Rule 9 of the Examination
Rules implies that if a qualified person is
available, though junior, then inspite of there
being seniors available but who have not passed
the examination and who have still specified
attempts remaining to be completed, yet, the
authority would be justified in promoting the
juniors.
7.6 In the instant case, undisputedly, the
respondent was satisfying all the eligibility
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criteria and therefore, he was promoted to the
post of Deputy Chitnis. Under such
circumstances, the learned Tribunal has rightly
held that the Rule 9 of the Deputy Chitnis
(Panchayat Service), Departmental Examination
Rules, 2002 would not be applicable in case of
both the respondent No.1 to justify the
reservation as the promotion of both the
respondent No.1 vide order dated 29.09.2021 can
not be said to be ad-hoc or provisional
promotion.
7.7 It was submitted that there is no
provision much less Rules which permit the
petitioner authority to revert both the
respondent No.1 from the promotional post i.e.
Deputy Chitnis to lower post i.e. Senior Clerk
on ground of subsequent acquisition of the
eligibility by the persons in cadre of Senior
Clerk. Therefore, the petitioner authority
cannot unsettle the vested right of both the
respondent No.1 over the post of the Deputy
Chitnis. Under such circumstances, the judgment
dated 26.09.2023 passed by the learned Tribunal
is just, legal, and proper.
7.8 It was submitted that bare perusal of
the proposal made by the petitioner authority,
circulating resolution dated 31.08.2021 passed
by the Departmental Promotion Committee and the
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approval given by the respondent Board makes it
patently clear that the promotion was not ad-hoc
/ provisional in any manner or subject to
reversion. Thus, what the petitioner authority
cannot do directly was done indirectly and
therefore, the learned Tribunal has rightly
quashed the order dated 04.08.2022.
7.9 It was submitted that the learned
Tribunal has rightly considered that as per the
provisions of the Circular dated 22.11.1984, the
seniors to the respondent No.1 who were not
satisfying the eligibility criteria at the time
of promotion of both the respondent No.1 cannot
even be considered as Senior to both the
respondent No.1 for the purpose of preparing the
Final Seniority List for the promotion.
Moreover, the provisions of Rule 12 of the
Gujarat Panchayat Service Classification and
Recruitment (General) Rules, 1998 also provides
that merely on ground of seniority, the employee
cannot be promoted. Therefore, the entire base
of the order dated 04.08.2022 considering the
ineligible seniors to be eligible for promotion
by reverting both the respondent No.1 is ill
founded and therefore, the same is rightly
quashed.
7.10 It was submitted that the judgment
dated 26.09.2023 rendered by the learned
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Tribunal is in accordance with law as the
Government Resolution dated 26.03.2003 provides
that it is mandatory to pass the Departmental
Examination to be considered for the promotion
and in absence of passing of such examination,
no person can be considered for promotion.
Therefore, the right to be considered for the
promotion of the persons mentioned in the order
dated 04.08.2022 has accrued in the year 2022
(upon their passing the departmental
examination) for the first time and hence, the
said accrued right cannot override or infringe
the vested right of the respondent who was
already promoted in the year 2021.
7.11 It was submitted that when both the
respondent No.1 were given the promotion, to the
best knowledge of both the respondent No.1, none
of the then seniors of the respondent No.1 have
ever objected the promotion of both the
respondent No.1 or demanded the reversion of the
promotion of both the respondent. In fact, the
Appeal before the Learned Tribunal against the
order dated 04.08.2022 of reversion was filed on
19.09.2022 and after hearing the concerned
authorities including the petitioner, the Appeal
was kept for order on 28.06.2023. Thereafter, at
behest of the petitioner authority, the private
respondents filed the application for joining
party and same was allowed subsequently. After
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hearing all the concerned parties, the judgment
dated 26.09.2023 came to be rendered by the
learned Tribunal. Therefore, the Suo-moto action
of reversion by the petitioner speaks volume
about mala-fide and arbitrary approach on part
of the petitioner authority.
7.12 It was patently clear from the record
and procedure followed for the promotion of both
the respondent No.1 to the post of Deputy
Chitnis that the promotion given to both the
respondent No.1 was not at all 'ad- hoc /
provisional promotion'. It is apparent from the
Circulating Resolution dated 31.08.2021 of the
Departmental Promotion Committee that the
promotion was granted to both the respondent
No.1 by resolving that both the respondent No.1
are qualified for the promotion and it is
necessary to grant the promotion to both the
respondent No.1 in the interest of the
administration and public. Thus,there is no
whisper about the 'ad hoc/provisional promotion'
in the Circulating Resolution dated 31.08.2021
of the DPC. Moreover, in case of ad hoc/
provisional promotion, the DPC is not required
to be convened. Thus, the very fact that the DPC
was convened and thereafter, the promotion to
both the respondent No.1 is granted makes it
evident that the claim of the petitioner with
regards to 'ad hoc/provisional promotion' is
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fallacious.
7.13 It was submitted that conjoint reading
of column no. 10, 15, 17(E) and 22 of Checklist/
Proposal/Schedule and column no. 9 of Appendix A
of Checklist /Proposal/Schedule for promotion
enclosed with the Circulating Resolution dated
31.08.2021 makes it evident that in no uncertain
terms, the promotion given to both the
respondent No.1 was not 'adhoc/provisional
promotion.'Thus,the stand taken by the
petitioner at subsequent stage while issuing the
order dated 04.08.2022 is nothing but contrary
to record and law. In fact, both the respondent
No.1 did object the incorporation of condition
no.1 of reversion immediately after the order
dated 27.09.2021 was issued for the promotion.
Moreover, initially, the name of both the
respondent No.1 was not incorporated in the
Seniority List of Deputy Chitnis. However, after
the objection was raised by both the respondent
No.1, ultimately, name of both the respondent
No.1 was incorporated in the final Seniority
List of Deputy Chitnis and therefore, the
condition no.1 was given go bye. In case of ad
hoc/provisional promotion, the names are not
being incorporated in the seniority list. Thus,
the very fact that the petitioner incorporated
the name of both the respondent No.1 in the
final Seniority List of Deputy Chitnis demolish
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the claim of the petitioner with regards to ad
hoc / provisional promotion with regards to both
respondent No.1.
7.14 It was submitted that it is well
settled law that what can not be done directly
cannot be done indirectly. Thus, when the
petitioner does not have any power under
applicable provisions of law to revert both the
respondent No.1, the order dated 04.08.2022
passed in colorable exercise of power was
rightly quashed and set-aside by the learned
Tribunal. Moreover, any condition which is
dehors the applicable law cannot be said to be
binding in law.
7.15 It is general practice of the
petitioner to promote the junior employees in
absence of qualified senior employees in the
interest of administration and public. It is
pertinent to submit that in the past also the
petitioner has promoted the junior employees
from one cadre to another cadre. In case the
senior employees of such junior employees have
not passed the examination within prescribed
time. However, in such cases, the juniors have
never been reverted from the promotional post
upon the then seniors having acquired the
qualification by passing the examination within
prescribed attempts. Thus, the action of
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reversion by the petitioner is discriminatory.
The examples of such promotion were produced by
both the respondent No.1 along with written
submissions of both the respondent No.1
submitted before the learned Tribunal.
7.16 It was submitted that the reliance by
the petitioner on Circular dated 28.07.2020 is
patently misplaced. The said Circular deals with
the ad hoc appointment and not the promotion.
Moreover, both the respondent No.1 were granted
the regular promotion and therefore also,the
reliance on Circular of 2020 by the petitioner
is sheer misplaced. It is submitted that as per
the knowledge of both the respondent No.1, there
are 3 vacant posts in Deputy Chitnis cadre.
8. Learned advocate Mr. Himanish J. Japee appearing
for the private respondents No.5 and 6 by and
large adopting the submissions made by learned
advocate Mr. H. S. Mushaw appearing for the
petitioner, he also highlighted the facts that
the respondents No.5 and 6 whom he is
representing has cleared the departmental
examination within the specified number of
attempts and as the rule provides that if a
person clears the departmental examination
within the specified number of attempts, he
would be entitled to promotion irrespective of
seniority and therefore as in the feeder cadre
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respondents No. 5 and 6 were senior to the
respondent No.1, the tribunal has committed a
grave error by overlooking the aforesaid facts.
9. Learned advocate Mr. Premal R. Joshi appearing
for the respondent No.4 and learned Assistant
Government Pleader Ms. Tanushree Shrimal
submitted that the respective respondents they
are representing are only formal parties and
therefore, considering the submissions made by
learned advocates appearing for the contesting
parties this Court may pass appropriate order.
10. I have heard learned advocates appearing
for the parties and perused the record. On
perusal of record, I found that the date on
which the departmental promotion committee made
for the first time i.e. on 31.7.2021 to consider
the case of private respondents for promotion,
on that day except for the respondent No.1 in
both the petitions all other private respondents
had not cleared the departmental examination
which would qualified them for regular
promotion. The record also indicates that when
the recommendation to promote respondents No.1
and 2 was made they were lacking the requisite
experience and hence, a proposal was made on
21.8.2021 to send a revised proposal to consider
the case of the respondents on the basis of
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considering two third experience of prescribed
experience of five years and accordingly on
31.8.2021, the petitioners through departmental
promotion committee passed a circulating
resolution and a fresh proposal for promotion of
respondent No.1 in both the petitions were sent
to count two third experience of both the
respondent No.1 and to promote them on that
basis. Further, when the checklist was prepared
in the checklist also pursuant to the aforesaid
resolution dated 31.8.2021 in respect of a
specific column seeking the specific details as
to whether the promotion proposed is ad-hoc or
not, the petitioners specifically replied by
stating 'NO' which also would indicate that at
the relevant point of time the petitioners
intention was to promote the respondent No.1 on
regular basis. In fact, on perusal of
recommendation also the Court could not find
that the proposal was for ad-hoc promotion and
not for regular promotion. Accordingly, vide
order 27.9.2021, the respondent No.1 in both the
petitions were promoted to the post of Deputy
Chitnis and in the promotion order for the first
time there was reference about the fact that
their promotion would be ad-hoc promotion.
However, the record nowhere indicates that at
any point of time any such undertaking was taken
from respondent No.1 that despite they were
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qualified by all means they are promoted on ad-
hoc basis and their promotion would be withdrawn
and they would be reverted back to their
original post of Senior Clerk once the persons
Senior to them clears the departmental
examination within prescribed time. No such
undertaking is either on record nor it is the
case of the petitioner that at any point of time
such undertaking was taken from the respondent
No.1.
11. The record also indicates that despite
getting the promotion when the respondent No.1
did not find their names in the seniority list
when they made representation initially their
representation was not considered but
subsequently they found their names in the final
seniority list of Deputy Chitnis which was
published on 10.2.2022 which would indicate that
by all means the case of the petitioner was
considered for promotion to the post of Deputy
Chitnis on regular basis and the promotion
granted to the petitioner was not of ad-hoc
nature.
12. Further, if Rule 9 of the Deputy Chitnis
(Panchayat Service) - Departmental Examination
Rules, 2002 whereby the ad-hoc promotions are
governed is considered reads as under :-
"Rule 9. Provisional Promotion : If a
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qualified person is not available for
promotion to a post of Deputy Chitnis
(Panchayat Service) and it becomes
expedient to fill the post in public
interest, an unqualified person belonging
to the cadre of Senior Clerk who has not
exhausted specified chances to pass the
examination may be promoted to officiate
as Deputy Chitnis (Panchayat Service)
subject to the condition that he shall be
reverted on the date of the availability
of a qualified person for promotion or on
his failure to pass the examination within
the specified period and chances,
whicheverevent occurs earlier:
Provided that from the date of
commencement of these rules, such
unqualified person shall not be granted
increments in the time scale for the post
from he was promoted.
Provided further that the increments
withheld under first proviso shall be
released from the date of passing the
examination but no arrears shall be paid
for the increments so withheld.
Note : "The date of passing the
examination" means the date immediately
following the date on which the
examination ended.
Explanation : In this rule "qualified
person" means a Deputy Chitnis who has
passed the examination or a person who is
exempted from passing the said examination
and the expression "an unqualified person"
shall be construed accordingly."
13. Rule 9 provides that provisional promotion
can be granted only if a qualified person is not
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available for promotion to the post of Deputy
Chitnis and if the post is required to be filled
in public interest but the said provision also
provide that provisional promotion can be given
only to an unqualified person belonging to cadre
of senior clerk who has not exhausted specified
chances to pass the examination may be promoted
to officiate as Deputy Chitnis on a condition of
reversion once the qualified person for
promotion is available or the person promoted
fails to pass the examination within the
specified period and chances whichever event
occurs earlier, meaning thereby the aforesaid
rules provides for certain conditions for
promoting a person on ad-hoc basis. Those
conditions are (i) the person should be an
unqualified person belonging to the cadre of
senior clerk who has not exhausted specified
chances to pass the departmental examination;
(ii) such unqualified persons would be reverted
in two eventualities
(a) upon availability of qualified persons and
(b) on account of his failure to pass the
examination within the specified period
whichever occurs earlier.
14. The rules does not say anywhere anything
about a senior or junior, in fact the rule is in
respect of an unqualified person and the rules
specifically provides that only an unqualified
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persons can be promoted on provisional basis
(ad-hoc promotion) and therefore, when that
unqualified person is replaced by a qualified
person, he can be reverted, or in case if, he
fails to pass the qualifying examination within
specified chances in specified period then only
he can be reverted. In the instant case, both
the respondent No.1 in both the petitions are
qualified persons as they had already cleared
the departmental examination which would
qualified them for the post of Deputy Chitnis.
Further, the petitioner itself made a proposal
to consider thir two third experience of five
years instead of five years experience which
would make it more than clear that such
requirement is not there for ad-hod or
provisions promotion but is a requirement to
promote a person on regular basis only. Thirdly,
when a person has become qualified to be
promoted to the post but Deputy Chitnis upon
passing the examination prior in point of time
even if some other person who is not promoted on
the date on which a person has acquired
qualification and is promoted is reverted later
on upon a senior acquiring the qualification
subsequently than it would amount to committing
causality to a meritorious candidate. I say saw
because if a person was qualified by all means
and was promoted on the basis of his
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qualification and on that day when the other
persons were not qualified then only a qualified
person would still march over unqualified
persons and in any case a person on the date on
which a qualified person was promoted was
unqualified on that day but acquires
qualification subsequently, he cannot claim his
promotion over an already qualified person who
is already promoted.
15. Further, Rule 9 would be applicable only to
unqualified persons and by virtue of Rule 9 only
unqualified person can be reverted and it does
not provide for reversion of any qualified
person who has already promoted.
16. In view of above, on perusal of impugned
decision dated 26.9.2023, passed by Gujarat
Civil Service Tribunal Gandhinagar in Appeal No.
84 and 85 of 2023, I am in complete agreement
with the reasons given by the tribunal. The
tribunal has considered every minute aspect and
procedure governing the promotion to the post of
Deputy Chitnis from the post of Senior Clerk and
by giving elaborate and cogent reasons, the
tribunal allowed the appeals preferred by both
the respondent No.1. Accordingly, I don't see
any reason to interfere with the same for the
reasons stated herein above both these petitions
are required to be dismissed and the same is
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dismissed accordingly. Rule discharged. No order
as to costs.
17. In view of the order passed in the main
matter, connected civil applications are also
disposed of accordingly.
(NIRZAR S. DESAI,J)
Pallavi
