Gujarat High Court
State Of Gujarat vs V.S.Parmar on 7 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5110 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
V.S.PARMAR & ANR.
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Appearance:
MS SURBHI BHATI, AGP for the Petitioner(s) No. 1
MR MP PRAJAPATI(677) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/07/2025
ORAL JUDGMENT
1. This petition is filed the following prayers:
"13(A) YOUR LORDSHIPS may be pleased to admit and
allow the present petition;
(B) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction
quashing and setting aside.
(C) YOUR LORDSHIPS may be pleased to quash and set
aside the impugned order dated 03.10.2016 passed by
Gujarat Civil Tribunal in Appeal No.171 of 2014.
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(D) Pending, admission, hearing and final disposal of this
petition, this Hon'ble Court may be pleased to stay the effect
and operation of the impugned order dated 03.10.2016 passed
by Gujarat Civil Tribunal in Appeal no.171 of 2014.
(E) xxxx"
2. The petitioner, State of Gujarat, has filed this
petition on the facts that the respondent no.1 was appointed
as Clerk in the office of the Collector, Jamnagar in the year
1979 and retired as Deputy Mamlatdar with effect from
30.9.2012; that the respondent no.1 appeared in the
examination in the month of June, 1998 and the result was
declared in the month of October, 1988; that during the
tenure as a Clerk in the office of the Collector, Jamnagar,
the respondent no.1 appeared in the examination for the post
of Deputy Mamlatdar conducted in the month of June, 1988
for which the result was declared in October, 1988; the
respondent no.1 retired on 30.9.2012; that till then no
grievance was raised by the respondent no.1 about the date
of promotion till 2005; after the delay of 16 years, the
respondent no.1 had made communication of the Collector
vide communication dated 23.8.2005 to give the deemed date
of promotion; pursuant to the said communication dated
23.8.2005, the Collector, Jamnagar had considered the claim
of the respondent no.1 as partly right and instead of giving
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the promotional benefit with effect from 26.10.1988, it was
rectified from 1.11.1988; that the said order dated 4.8.2006
was challenged before the Gujarat Civil Services Tribunal,
wherein the impugned order dated 3.10.2016 was passed and
the respondents therein-petitioner herein was ordered to be
given deemed date of promotion from 1.7.1988. Therefore, this
petition is filed.
3. Heard learned advocates for the parties.
3.1 Learned AGP Ms.Bhati has submitted that the
respondent no.1 retired as Deputy Mamlatdar on 30.9.2012;
he did not raise any grievance about his date of promotion
till 2014 and after delay of 16 years, the respondent no.1
wrote to the Collector, Jamnagar on 23.8.2005 to give him
deemed date of promotion. She has further submitted that
the Collector, Jamnagar, vide order dated 4.8.2006, modified
the promotion order and granted the deemed date of
promotion with effect from 26.10.1988 and it was rectified
from 1.11.1988. Thus, she has submitted that there is only
one month's difference in granting the deemed date of
promotion.
3.2 She has further submitted that therefore the order
passed by the learned Services Tribunal is ex-facie without
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proper consideration of the material available on the record
and erroneously considering the government resolution passed
by the General Administrative Department dated 26.3.2003.
She has submitted that such resolution is prospective in
nature and government resolution dated 26.3.2003 is
explanation of the earlier government resolution dated
9.2.1953, 10.10.1969 and 16.7.1973 and the government had
clarified and held that the date of examination is not
relevant. The only relevant date is the date of result/passing
the examination. Therefore, the observation of the learned
Tribunal that the government resolution dated 26.3.2003 is
not applicable to the case of the respondent no.1 is erroneous
and bad in law. It was specifically stated that there were
various questions arising for the qualifying date for promotion
and that this government resolution has no prospective effect
but retrospective effect. This government resolution is
applicable to all the pending issues. Therefore, the learned
Tribunal has erred in modifying the order passed by the
learned Collector.
3.3 Learned AGP has further submitted that the
Tribunal has wrongly considered the date of examination. The
government resolution dated 9.2.1953 and 10.10.1969 are not
applicable to the case of the respondent no.1. She has lastly
contended that the respondent was already getting the benefit
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of promotion for the post of Deputy Mamlatdar with effect
from 26.10.1998 and reason for filing of the appeal in the
year 2014 before the Tribunal is to get benefits of promotion
with effect from 1.7.1988. The claim of the respondent no.1 is
belated and barred by principle of limitation. The petitioner
has already got the benefits of promotion by way of order
dated 24.10.1989 and respondent no.1, for the first time made
representation to the Collector in the year 2005 and the
Collector had partly allowed the representation by the order
dated 4.8.2006. The respondent no.1 has challenged the order
passed in the year 2006 by way of appeal in the year 2014
before the Gujarat Civil Services Tribunal. Therefore, there is
more than 25 years delay in challenging the order of 1989.
Even from the date of the order passed by the Collector,
there is delay of more than 8 years which is not explained
by the respondent no.1 and on that count also, the learned
Tribunal has committed error in considering the case of the
respondent. She, therefore, prayed to allow this petition.
3.4 In support of her submissions, learned AGP has
relied on the following judgments of the Hon'ble Apex Court:
(1) Government of West Bengal & Ors. V/s Dr.Amal Satpathi
& Ors., a non-reportable judgment published in 2024 INSC
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(2) Bihar State Electricity Board and Others V/s Dharamdeo
Das, a reportable judgment published in 2024 INSC 549.
4. Per contra, learned advocate Ms.Prajapati
appearing for the respondent has referred to the affidavit-in-
reply filed by the respondent no.1 and has contended that as
per the government resolution passed by the erstwhile
Mumbai Provincial Political and Services Department dated
9.2.1953 and government resolution issued by the General
Administrative Department dated 10.10.1969 which were in
force at the time of promotion of the present respondent no.1,
the deemed date for promotion shall be the day next to the
completion of examination. Therefore, as in the case of
respondent no.1 as the examination completed on 30.6.1988
the deemed date shall be considered with effect from
1.7.1988. She has submitted that the deemed date of
promotion is revised by the Collector in the year 2006 and
the benefit which is required to be given as per the above
mentioned government resolution are not given to the
respondent no.1. That the respondent no.1 has made several
representations but the government has time and again
declined to accept the request made stating that the deemed
date of promotion can only be considered from the date of
result i.e. 26.10.1988, considering the government resolution
dated 26.3.2003 and government resolution dated 12.8.2009
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which is not permissible. She has submitted that those
government resolutions cannot be given retrospective effect
and therefore the government resolution date 10.10.1969 was
in force when the respondent no.1 has passed departmental
examination, the same must be implemented in the case of
the present respondent no.1. She has further submitted that
the order passed by the Tribunal is just and proper as the
same is passed after taking into consideration the government
resolutions which were in force at the relevant point of time.
The government resolution of 1953 and 1969 and the learned
Tribunal has rightly come to the conclusion that government
resolution of 2003 cannot be applied retrospectively and
therefore she has submitted that the petition is required to
be dismissed.
5. I have considered the rival submissions and
perused the impugned order passed by the Services Tribunal.
Prima facie, it transpires that there is no dispute that the
respondent no.1 has retired as Deputy Mamlatdar on
30.9.2012 and he did not raise any grievance before the
Services Tribunal about his date of promotion till 2014 and
therefore there is a huge delay of more than 26 years from
the date of promotion and about 8 years from the date of
order passed by the Collector by which the date is modified
by the Collector. It is also not in dispute that the dispute is
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surrounding whether the government resolution of 2003 is
required to be considered or the earlier government
resolutions of 1953 and 1969 are to be taken into account. It
is not in dispute that normally government resolution should
be having prospective effect and not retrospective effect.
6. It also transpires that from the government
resolution dated 2003 which is as such clarificatory in nature,
the earlier government resolutions are also still in existence
and therefore when the petitioner has not raised any
grievance till he approached the Collector in the year 2004
from 1988 about the deemed date of promotion, more
particularly, after considering the government resolution which
is existing in the year 2003, the Collector has considered the
same by giving some modification in the date of consideration
of promotion. It cannot be said that the government
resolution dated 2003 is an independent government
resolution as the language of the said government resolution
clearly indicates that it is clarification of the earlier
government resolution and therefore the said government
resolution is required to be considered while considering the
case of the petitioner as the petitioner has raised the
grievance in the year 2004 though he has passed the
examination in 1988. Moreover, considering the aspect of
delay, it is apparent from the record that the petitioner has
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challenged the order of the Collector after eight years and
the order granting promotion which is granted in the year
1989 by filing appeal before the Services Tribunal in the
year 2014 and therefore, the delay of almost 26 years is
there.
7. In the judgment of Dr.Amal Satpathi & Ors.
(supra), it is held in paragraph nos.19 and 20, as under:
"19. It is a well settled principle that promotion becomes
effective from the date it is granted, rather than from the
date a vacancy arises or the post is created. While the
Courts have recognized the right to be considered for
promotion as not only a statutory right but also a
fundamental right, there is no fundamental right to the
promotion itself. In this regard, we may gainfully refer to a
recent decision of this Court in the case of Bihar State
Electricity Board and Others v. Dharam deo Das9, wherein
it was observed as follows:
"18. It is no longer res integra that a promotion is effective
from the date it is granted and not from the date when a
vacancy occurs on the subject post or when the post itself is
created. No doubt, a right to be considered for promotion
has been treated by courts not just as a statutory right but
as a fundamental right, at the same time, there is no
fundamental right to promotion itself. In this context, we
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may profitably cite a recent decision in Ajay Kumar Shukla
v.Arvind Rai10 where, citing earlier precedents in Director,
Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty
11and Ajit Singh v. State of Punjab12, a three-Judge Bench
observed thus:
41. This Court, time and again, has laid emphasis on right
to be considered for promotion to be a fundamental right, as
was held by K. Ramaswamy, J., in Director, Lift Irrigation
Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the
report
which is reproduced below:
'4....... There is no fundamental right to promotion, but an
employee has only right to be considered for promotion,
when it arises, in accordance with relevant rules. From this
perspective in our view the conclusion of the High Court
that the gradation list prepared by the corporation is in
violation of the right of respondent-writ petitioner to equality
enshrined under Article 14 read with Article 16 of the
Constitution, and the respondent-writ petitioner was unjustly
denied of the same is obviously unjustified.'
42. A Constitution Bench in Ajit Singh v. State of Punjab,
laying emphasis on Article 14 and Article 16(1) of the
Constitution of India held that if a person who satisfies the
eligibility and the criteria for promotion but still is not
considered for promotion, then there will be clear violation of
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his/her's fundamental right. Jagannadha Rao, J. speaking for
himself and Anand, C.J., Venkataswami, Pattanaik,
Kurdukar, JJ., observed the same as follows in paras 22 and
27:
'Articles 14 and 16(1) : is right to be considered for
promotion a fundamental right
22. Article 14 and Article 16(1) are closely connected. They
deal with individual rights of the person. Article 14 demands
that the 'State shall not deny to any person equality before
the law or the equal protection of the laws'. Article 16(1)
issues a positive command that:
'there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office
under the State'.
It has been held repeatedly by this Court that clause (1) of
Article 16 is a facet of Article 14 and that it takes its roots
from Article 14. The said clause particularises the generality
in Article 14 and identifies, in a constitutional sense
"equality of opportunity" in matters of employment and
appointment to any office under the State. The word
"employment" being wider, there is no dispute that it takes
within its fold, the aspect of promotions to posts above the
stage of initial level of recruitment. Article 16 (1) provides to
every employee otherwise eligible for promotion or who comes
within the zone of consideration, a fundamental right to be
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"considered" for promotion. Equal opportunity here means the
right to be "considered" for promotion. If a person satisfies
the eligibility and zone criteria but is not considered for
promotion, then there will be a clear infraction of his
fundamental right to be "considered" for promotion, which is
his personal right. "Promotion" based on equal opportunity
and seniority attached to such promotion are facets of
fundamental right under Article 16(1).
* * *
27. In our opinion, the above view expressed in Ashok
Kumar Gupta [Ashok Kumar Gupta v. State of U.P.13, and
followed in Jagdish Lal [Jagdish Lal v. State of Haryana14,
and other cases, if it is intended to lay down that the right
guaranteed to employees for being "considered" for promotion
according to relevant rules of recruitment by promotion (i.e.
whether on the basis of seniority or merit) is only a
statutory right and not a fundamental right, we cannot
accept the proposition. We have already stated earlier that
the right to equal opportunity in the matter of promotion in
the sense of a right to be "considered" for promotion is
indeed a fundamental right guaranteed under Article 16(1)
and this has never been doubted in any other case before
Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.],
right from 1950.'
"20. In State of Bihar v. Akhouri Sachindra Nath, it was
held that retrospective seniority cannot be given to an
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employee from a date when he was not even borne in the
cadre, nor can seniority be given with retrospective effect as
that might adversely affect others. The same view was
reiterated in Keshav Chandra Joshi v. Union of India16,
where it was held that when a quota is provided for, then
the seniority of the employee would be reckoned from the
date when the vacancy arises in the quota and not from any
anterior date of promotion or subsequent date of
confirmation. The said view was restated in Uttaranchal
Forest Rangers' Assn. (Direct Recruit) v. State of U.P17, in
the following words:
'37. We are also of the view that no retrospective promotion
or seniority can be granted from a date when an employee
has not even been borne in the cadre so as to adversely
affect the direct recruits appointed validly in the meantime,
as decided by this Court in Keshav Chandra Joshi v. Union
of India held that when promotion is outside the quota,
seniority would be reckoned from the date of the vacancy
within the quota rendering the previous service fortuitous.
The previous promotion would be regular only from the date
of the vacancy within the quota and seniority shall be
counted from that date and not from the date of his earlier
promotion or subsequent confirmation. In order to do justice
to the promotes, it would not be proper to do injustice to
the direct recruits......
38. This Court has consistently held that no retrospective
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promotion can be granted nor can any seniority be given on
retrospective basis from a date when an employee has not
even been borne in the cadre particularly when this would
adversely affect the direct recruits who have been appointed
validity in the meantime."
(emphasis supplied)
20. In the instant case, it is evident that while respondent
No. 1 was recommended for promotion before his retirement,
he could not assume the duties of the Chief Scientific
Officer. Rule 54(1)(a) of the West Bengal Service Rules,
clearly stipulates that an employee must assume the
responsibilities of a higher post to draw the corresponding
pay, thus, preventing posthumous or retrospective promotions
in the absence of an enabling provision."
8. In the judgment of Dharamdeo Das (supra), it is
held in paragraphs 21 and 24 as under:
"21. In Nani Sha and Others vs. State of Arunachal Pradesh
and Others, it was observed that mere existence of a
vacancy is not sufficient for an employee to claim seniority
and the date of actual appointment has to be in accordance
with the prescribed procedure. In Dinesh Kumar Sharma
(supra), the following pertinent observations were made :
"34. Another issue that deserves consideration is whether the
year in which the vacancy accrues can have any relevance
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for the purpose of determining the seniority irrespective of
the fact when the persons are recruited. Here the
respondent's contention is that since the vacancy arose in
1995-1996, he should be given promotion and seniority from
that year and not from 1999, when his actual appointment
letter was issued by the appellant. This cannot be allowed
as no retrospective effect can be given to the order of
appointment order under the Rules nor is such contention
reasonable to normal parlance. This was the view taken by
this Court in Jagdish Ch. Patnaik v. State of Orissa."
24. In Pawan Pratap Singh vs. Reevan Singh, this Court
had taken note of the earlier decision in Pravat Kiran
Mohanty (supra) and summarised the position in the
following words :
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 Engg.
Officers' Assn. v. State of Maharashtra [Direct Recruit Class
II Engg. Officers' Assn. v. State of Maharashtra23. The
principle was reiterated by this Court in State of Bihar v.
Akhouri Sachindra Nath17 and State of Uttaranchal v.
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Dinesh Kumar Sharma16 In Pawan Pratap Singh v. Reevan
Singh24, 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 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
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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 Rao26 ."
(emphasis added)
9. In view of the above, though the courts have
recognized that the right to be considered for promotion being
a facet of the right to equal opportunity in employment and
appointment, would have to be treated as a fundamental
right guaranteed under Articles 14 and 16(1) of the
Constitution of India but such a right cannot translate into a
vested right of the employee for being necessarily promoted
to the promotional post, unless the rules expressly provide for
such a situation, in the present case, there is a huge delay
in agitating the grievance before the appropriate forum i.e.
from 1989 to 2014.
10. The learned Tribunal has committed error in
giving the findings on the applicability of the government
resolution by relying on government resolutions dated 9.2.1953
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and 10.10.1969 instead of referring to the government
resolution dated 2003. The learned Tribunal has also not
properly considered the aspect of delay for approaching the
services tribunal by the petitioner by way of said proceeding.
Further, even if the case of the petitioner is considered, then
also there is a difference of hardly one month of the date as
claimed of the petitioner. Therefore also, such aspect cannot
be considered at such a belated stage. The petitioner has
waited till he has attained the age of superannuation in 2012
and agitated the grievance of promotion which he has
received in the year 1989 and has not preferred any
proceeding during his service tenure and has preferred
proceeding after much delay in the year 2014. All these
aspects are also required to be taken into consideration as
also the conduct of the petitioner
11. Considering the above facts and the fact that in
view of the government resolution of the year 2003, the
Collector has rightly modified the date and no further relief
ought to have been granted by the Tribunal and therefore
this petition deserves to be allowed by quashing and setting
aside the impugned order passed by the Services Tribunal.
12. This petition is allowed. The impugned order dated
3.10.2016 passed by the Gujarat Civil Tribunal in Appeal
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No.171 of 2014 is quashed and set aside. Rule is made
absolute. Consequential order will follow accordingly.
(SANDEEP N. BHATT,J)
SRILATHA
