Gujarat High Court

Akabari Kaushik Hansrajbhai vs State Of Gujarat on 22 July, 2025

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                            C/SCA/10273/2016                                          JUDGMENT DATED: 22/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 10273 of 2016
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 10274 of 2016
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 10786 of 2016

                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE SANDEEP N. BHATT
                       ==========================================================

                                    Approved for Reporting                           Yes              No

                       ==========================================================
                                               AKABARI KAUSHIK HANSRAJBHAI & ANR.
                                                             Versus
                                                    STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MR. DWIJEN JOSHI(8518) for the Petitioner(s) No. 1,2
                       MR. PATH PATEL, AGP for the Respondent - State in SCA/10273/2016
                       MR. JEEJ JOTANGIA, AGP for the Respondent - State in SCA/10274/2016
                       MR. HENIL SHAH, AGP for the Respondent - State in SCA/10786/2016
                       GOVERNMENT PLEADER for the Respondent(s) No. 1,2
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                         Date : 22/07/2025
                                                     COMMON ORAL JUDGMENT

Rule returnable forthwith. Learned AGP waives

service of notice of Rule on behalf of respective

respondents in the respective petitions.

1. Since the issues involved in the present petitions

are almost identical in nature, hence, at the request of

learned advocates for the respective parties, the matters

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are heard together and decided together and Special Civil

Application No. 10273 of 2016 is considered as lead

matter and accordingly, facts are taken from the lead

matter for convenience of the Court.

2. The present lead petition i.e. Special Civil

Application No. 10273 of 2016 is filed by the petitioners

for seeking the following reliefs:

"(A) This Honourable Court be pleased to admit and allow this petition.

(B) This Honourable Court be pleased to issue appropriate writ, order or direction including the writ in the nature of mandamus and present petitioners be given seniority from dated 5.9.2011 as per the appointment of other candidates.

(C) Pending, admission hearing and/or final disposal of this Special Civil Application this Honourable be pleased to give present petitioners the benefit of regular pay-scale and all other benefits arising out of their

appointment as per the appointment of other candidates i.e. dated 5.9.2011.

(D) This Honourable Court be pleased to grant any other and further relief/s as may be deemed fit in the facts and

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circumstances of the case."

3. Brief facts as stated in the memo of the lead

petitions are as under:

3.1 It is the case of the petitioners in this petition that

the present petitioners are blind and seeking protection

under Section 33 of the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation)

Act, 1995. It is further the case of the petitioners in

this petition that the present petitioners as well as other

similarly situated persons have preferred different

petitions before this Court, whereby on 01.12.2012, the

Court has passed common judgment and the present

petitioners have preferred Special Civil Application No.6858 of 2010 and that the aforesaid common

judgment passed by the Court was implemented. It is

further the case of the petitioners in this petition that

pursuant to the aforesaid order passed by this Court, the

present petitioners were appointed by the respondent by

Office Order dated 10.07.2013 and petitioner No.2-

Makwana Dipak Prahladbhai and petitioner No.1-Akabari

Kaushik Hansrajbhai have resumed the charge on

11.07.2013. Therefore, the petitioners are already

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appointed pursuant to the order passed by this Court,

whereby the petitions of the petitioners were allowed

and, therefore, the right, which has been created in

favour of the present petitioners pursuant to the

judgment of the Court and the aspect of seniority of the

petitioners is also required to be considered from the

date of appointment of other candidates. It is further the

case of the petitioners in this petition that as per the

advertisement dated 28.5.2010, the petitioners are

required to be awarded and notional seniority is required

to be given to the present petitioners and they are also

entitled for salary as the prevailing pay-scale of the

Government as the Government has not cared to

implement the provisions of the Disabilities Act in proper manner and due to that, the present petitioners are

unnecessarily penalized.

3.2 It is further the case of the petitioners in this

petition that earlier petitions preferred by the petitioners

were with regard to appointment of primary teacher and

the Hon'ble High Court has given the mandate in favour

of the present petitioner by issuing appropriate direction

in judgment and order dated 01.11.2012. The petitioners'

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right to get an appointment is created and, therefore,

present petitioners have preferred the earlier petition as

the present petitioners are now already appointed and

are working in the fixed salary of Rs.5300/-, which is

required to be regularized after 05 years of completion of

service and at the same time the petitioners are required

to be given benefit of their notional seniority. Hence, the

present petition has been filed against the illegal action

of the State Authority in appointing present petitioners

from the year 2013 and consider his service and

seniority from the year 2013 and, hence, the present

petition is filed under Article 226 of the Constitution of

India. Hence, the present petitions have been preferred.

4. Heard Mr. Dwijen Joshi, learned advocate for the

petitioners and learned Assistant Government Pleader for

the respondent - State in the respective petitions.

5.1 Mr. Dwijen Joshi, learned advocate for the

petitioners has submitted that the present petitioners are

blind and seeking protection under Section 33 of the

Persons with Disabilities (Equal Opportunities, Protection

of Rights and Full Participation) Act, 1995 (hereinafter

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referred to as "the Disabilities Act". He has further

submitted that the present petitioners as well as other

similarly situated persons have preferred different

petitions before this Court, whereby on 01.12.2012, the

Court has passed common judgment. He has further

submitted that the present petitioners have preferred

Special Civil Application No.6858 of 2010 and that the

aforesaid common judgment passed by the Court was

implemented. He has further submitted that pursuant to

the aforesaid order passed by this Court, the present

petitioners were appointed by the respondent by Office

Order dated 10.07.2013 and petitioner No.2-Makwana

Dipak Prahladbhai and petitioner No.1-Akabari Kaushik

Hansrajbhai have resumed the charge on 11.07.2013. Therefore, the petitioners are already appointed pursuant

to the order passed by this Court, whereby the petitions

of the petitioners were allowed and, therefore, the right,

which has been created in favour of the present

petitioners pursuant to the judgment of the Court and

the aspect of seniority of the petitioners is also required

to be considered from the date of appointment of other

candidates. He has further submitted that as per the

advertisement dated 28.05.2010, the petitioners are

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required to be awarded and notional seniority is required

to be given to the present petitioners and they are also

entitled for salary as the prevailing pay-scale of the

Government as the Government has not cared to

implement the provisions of the Disabilities Act in proper

manner and due to that, the present petitioners are

unnecessarily penalized.

5.2 He has further submitted that earlier petitions

preferred by the petitioners were with regard to

appointment of primary teacher and the Hon'ble High

Court has given the mandate in favour of the present

petitioners by issuing appropriate direction in judgment

and order dated 01.11.2012. The petitioners' right to get

an appointment is created and, therefore, present petitioners have preferred the earlier petitions as the

present petitioners are now already appointed and are

working in the fixed salary of Rs.5300/-, which is

required to be regularized after 05 years of completion of

service and at the same time the petitioners are required

to be given benefit of their notional seniority. Hence, the

present petitions have been filed against the illegal

action of the State Authority in appointing present

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petitioners from the year 2013 and consider his service

and seniority from the year 2013 and, hence, the present

petitions are filed under Article 226 of the Constitution

of India.

5.3 He has further submitted that considering the

material available on the record and considering various

provisions of the Disabilities Act, more particularly,

Sections 33, 41 and 47, the action of the respondent

Authority is to be considered by this Court and

appropriate order may be passed by granting senior from

the date of the advertisement considering the date of

appointment of other candidates, who are appointed as

per the advertisement.

5.4 In support of his submissions, he has relied upon

the judgment of the Hon'ble Apex Court in the cases of

(i) C. Jayachandran vs. State of Kerala and Others

reported in MANU/SC/0271/2020, equivalent citation is

(2020) 5 SCC 230, and he has relied upon the

paragraphs 35 to 37 and 42 as well as (ii) Shri Vallabh

Glass Works Ltd. and Others Vs. Union of India and

Others reported in MANU/SC/0173/1984, equivalent

citation is (1984) 3 SCC 362, and he has relied upon

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paragraph 9 and has prayed that the present petitions

are required to be allowed.

6.1 Per contra, learned Assistant Government Pleader for the respondent - State has strongly opposed the

request made by learned advocate for the petitioners and

has submitted that retrospective seniority cannot be

granted in the case of the present petitioners. Learned

AGP has referred to the affidavit-in-reply filed by the

respondent and prayer of the present petitioners to give

the seniority from dated 05.09.2011 is misconceived as

the petitioners are claiming to give the seniority to them

as per the appointment of other candidates, which is

given on 05.09.2011. Learned AGP has further submitted

that pursuant to the order dated 01.11.2012 passed by this Hon'ble Court in Special Civil Application No. 6858

of 2010 and allied matters, the present petitioners were

appointed vide order dated 10.07.2013 on the post of

Vidya Sahayak.

6.2 Learned AGP has also submitted that the

petitioners have assumed the charge on 11.07.2013 and

appointment order dated 10.07.2013 is happily accepted

by the petitioners and the same was not challenged and,

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therefore, they have accepted the appointment order

dated 10.07.2013. Learned AGP has also submitted that

for all these years the petitioners are working on the

post of Vidya Sahayak pursuant to the appointment

order dated 10.07.2015 and after the lapse of almost

three years from the date of appointment i.e. 10.07.2013,

the present petitions are preferred in the year 2016 with

malafide intentions and ulterior motive. Learned AGP

has also submitted that in view of the order passed by

this Court, the petitioners were appointed by order dated

10.07.2013 and it cannot be considered at par with other

candidates who are appointed on 05.09.2011 as there is

substantial difference that the other candidates are

already selected and appointed and the present petitioners are appointed pursuant to the order passed by

this Court. Learned AGP has also submitted that the

right and interest of the petitioners on the post of Vidya

Sahayak came into existence only after the appointment

order dated 10.07.2013 and, therefore, the seniority

cannot be claimed from 05.09.2011. Learned AGP has

also submitted that looking to the prayers of the

petitioners, they are claiming the retrospective senior,

which is not permissible under the law.

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6.3 In support of the submission, learned AGP has

referred to the judgment of the Hon'ble Apex Court in

the cases of (i) Ganga Vishan Gujrati and Other Vs.

State of Rajasthan and Others reported in (2019) 16

SCC 28, and more particularly, paragraph 45 is relevant

as well as (ii) Shiba Shankar Mohapatra and Others Vs.

State of Orissa and Others reported in (2010) 12 SCC

471, more particularly, paragraph 18 is relevant and

therefore, learned AGP has submitted that the present

petitioners have no case on merits and the petitions are

required to be dismissed.

7.1 I have considered the rival submissions made at the

bar. I have perused the pleadings of the parties as well as documents available on the record. I have also

considered the various materials available on the record.

Prima facie, it transpires that the petitioners were

appointed as Vidya Sahayak pursuant to common CAV

judgment dated 01.11.2012 passed in Special Civil

Application No.6858 of 2010 and allied matters by this

Hon'ble Court and thereafter, pursuant to Office Order

dated 10.07.2013, they were appointed and have assumed

the charge 11.07.2013. Now, considering the prayers,

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which is sought by the petitioners to consider the

seniority from 05.09.2011 as per the appointment of

other candidates are prima facie found misconceived.

7.2 Now considering the contentions of the respective

parties, it is fruitful to refer the judgment relied upon

by learned advocate for the petitioners in the case of C.

Jayachandran (supra), and he has relied upon the

paragraphs 35 to 37 and 42, as under:

"...35. We have heard learned counsel for the parties and find that the order passed by the Division Bench of the High Court is not sustainable.

36. The earlier writ petition filed by the appellant was allowed on 13 th September, 2010. The Division Bench of the High Court has directed to re-cast the seniority amongst the seven shortlisted candidates. The appellant was one of them. The challenge to the said order by three affected candidates remained unsuccessful when SLP was dismissed by this Court on 8 th October, 2010. The SLP was filed by the candidates who were granted benefit of moderation of marks. Once the direction of the Division Bench has attained finality, the appellant was entitled to seniority as per the select list to be revised as per merit of the candidates. In terms of Rule 6(2), the seniority is to be determined by the serial order in which the name appeared

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in the appointment order. The argument of learned counsel appearing for respondent No. 5 that the appellant was not appointed by the same appointment order, therefore, the appellant cannot claim seniority is not tenable. The appellant was entitled to be appointed along with other three candidates but because of the action of the High Court in adopting moderation of marks, the appellant was excluded from appointment. The exclusion of appellant from appointment was on account of an illegal act by the High Court which has been so found by the judgment dated 13th September, 2010. Since the select list has to be revised, the appellant would be deemed to be the part of the appointment along with other candidates in the same select list. As the actual date of appointment was on 24 th February, 2011, the appellant cannot actually be treated to be appointed on 30 th March, 2009 but is entitled to notional appointment from that date and consequential seniority.

37. In Sanjay Dhar, a three-Judge Bench of this Court held as under:

"16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. It is directed that the appellant shall be deemed to have been appointed along with other appointees under the appointment order dated 6- 3-1995 and assigned a place of seniority consistently with his placement in the order of merit in the select list prepared by J&K PSC and later forwarded to the Law Department..."

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42. Still further, the Division Bench of the High Court has completely erred in law in holding that the appellant has delayed the challenge of his appointment vide order dated 22nd December, 2010. The appellant was appointed pursuant to a direction issued earlier by the Division Bench. The Division Bench has directed to re-cast the select list and in such select list, the name of the appellant appears at Sl. No. 3 and that of Badharudeen at Sl. No. 4. The appellant has submitted the representation on 11 th April, 2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18 th September, 2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30th March, 2009. The appellant having been factually appointed vide communication dated 22nd December, 2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process..."

7.2.1 Furthermore, it is also fruitful to refer another

judgment relied upon by learned advocate for the

petitioners in the case of Shri Vallabh Glass Works Ltd.

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and Others (supra), and he has relied upon paragraph 9,

as under:

"... 9. In regard to the relief of refund of excess duty paid in respect of the other goods, the case stands on an entirely different footing. This is a case where the Department had assessed the duty payable by the appellants under a wrong provision. The appellants were obliged to pay the duty so assessed. They did not, no doubt, question the assessments by taking a specific stand as they had done earlier in the case of wired glass. The appellants, however, questioned the validity of the levy only on February 20, 1976 on the ground that tariff Item 23A (1) of the First Schedule to the Act under which the duty has been levied was not applicable to tile goods. While the Department refused to accept the said plea, the High Court has upheld it. In view of the decision of the High Court, the fact that the appellant had paid duty in excess of what they were bound in P law to pay should be now taken as having been established. It is. not disputed that if the appellants had filed a suit within the period of limitation the excess amount would have become refundable by virtue of section 72 of the Indian Contract Act. Section 17(1)(c) of

- the Limitation Act, 1963 provides that where in the case of any suit or application for which a period of limitation is prescribed under that Act, the suit or application is for relief from the consequence of a mistake, the period of limitation shall not begin to run until the plaintiff or applicant had discovered it or could have with reasonable

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diligence discovered it. In the instant case the date on which the mistake was discovered by the appellants or the date on which the appellants could with reasonable diligence have discovered it is not clear from the record before us. No efforts also was made in the course of the arguments urged on behalf of the appellants to establish it.

We have, therefore, to assume that on the date each payment of excise duty made by the appellants in excess of the proper duty payable by them, the appellants could have discovered with due diligence that the duty claimed from them was excessive. Under Article 113 of the Limitation Act, 1963 which is applicable to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department. But the appellants instead of filing a suit, first filed a writ petition in Special Civil Application No. 1365 of 1976 on September 28, 1976 and that petition had to be withdrawn in view of clause (3) of Article 226 of the Constitution as it stood then because the alternative remedy by way of an appeal was available. The appellants could, therefore, file the writ petition out of which the appeal arises only after the disposal of the revision petition by the Government of India as mentioned earlier. lt is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by the Government without the authority of law under Article 226 of the Constitution. This is an alternative remedy provided by the Constitution in additional to but not in supersession of the ordinary remedy by way of suit in the absence of

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any provision which would bar such a suit either expressly or by necessary implication. While there are different periods of limitation prescribed for the institution of different kinds of suits by the limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution. Whether relief should be granted to a . petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, i. is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to judged on its own facts and circumstance touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. In the instant case, the appellants had in fact approached the High Court on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for directing repayment of the excess duty

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paid by them. But no relief could be granted in that petition in view of the provisions of Article 226 of the Constitution as it stood then and the petition had to be withdrawn. Hence even granting that on the date of making each payment of excise duty in excess of the proper duty payable under law, the appellants should be deemed to have discovered the mistake, all such excess payments made on and after September 28, 1973 which would fall within the period of three years prior to the date on which Special Civil Application No. 1365 of 1976 was filed should have been ordered to be refunded under Article 226 of the Constitution. But the High Court declined to do so on grounds of estoppel and acquiescence. While we do agree that the appellants should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respect of excess payments made after September 28, 1973. In the instant case the appellants had made excess payments on being assessed by the Department and such payments cannot be treated as voluntary payments precluding them from recovering them. (See Sales Tax officer, Banaras & Ors. v. Kanhaiya Lal Mukundlal Saraf. We do not also find that the conduct of the appellants is of such a nature as would disentitle them to claim refund of excess payments made in respect of goods other than wired glass..."

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7.2.2 Furthermore, it is also fruitful to refer the

judgment relied upon by learned AGP in the case of

Ganga Vishan Gujrati and Other (supra), and more

particularly, paragraph 45 is relevant, as under:

"... 45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers' Association v State of Maharashtra14. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath15 and State of Uttaranchal v Dinesh Kumar Sharma16. In Pawan Pratap Singh v Reeven Singh17, this Court revisited the precedents on the subject and observed:

"45. ... (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in

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a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."

This view has been re-affirmed by a Bench of three judges of this Court in P Sudhakar Rao v U Govinda Rao..."

7.2.3 Additionally, it is also fruitful to refer another

judgment relied upon by learned AGP in the case of

Shiba Shankar Mohapatra and Others (supra), more

particularly, paragraph 18 is relevant, as under:

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"... 18. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar & Ors. v. State of Maharashtra & Ors. AIR 1974 SC 259, considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:-

"A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court...."

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7.3 It clearly transpires that case of the retrospect

seniority cannot be considered. In the present case, on

the bare reading of the prayers, the case of the

petitioners is for retrospective seniority. Moreover, the

question of entertaining the petitions disputing long

standing seniority filed at the belated stage cannot be

considered as in the present case, the petitioners have

got appointment in the year 2013 and the present

petitions are filed in the year 2016 and, therefore, in my