Gujarat High Court
Khamishabhai Sumarbhai Hothi vs State Of Gujarat on 24 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9020 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 9021 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 9050 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
4
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KHAMISHABHAI SUMARBHAI HOTHI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS REENA KAMANI FOR MR PH PATHAK(665) for the Petitioner(s) No. 1
MR PARTH PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/11/2025
COMMON ORAL JUDGMENT
1. Heard learned advocate Ms.Reena Kamani for learned
advocate Mr.P.H.Pathak appearing for the petitioner/s and
Mr.Parth Patel, Assistant Government Pleader for respondents.
2. All these batch of petitions having common question
involved in it, inasmuch as, all the petitioners are complaining
of their respective reversion order passed by respondents from
the Post of PSI (ad hoc) (Unarmed) to ASI (Unarmed). So,
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seeing the commonality of the issue involved in all these batch
of petitions, the same are heard and decided by way of this
common judgment.
FACTUAL MATRIX
3. To better understand the factual matrix of the case, the
facts of Special Civil Application No. 9020 of 2014 are taken
which are as follows:-
3.1. The petitioner appears to have been appointed as a
Constable in Rajkot City on 22.04.1974, later on, promoted to
the Post of Head Constable on 01.10.1992, and then after on
the Post of ASI (Assistant Sub Inspector). Subsequently
promoted on the post of PSI (ad hoc) vide his promotion order
dated 31.08.2012.
3.2. The aforesaid appointment order of petitioner clearly
states that it is a temporary promotion, whereby, he will
neither claim any seniority nor have any right to continue on
such Post. It is clearly mentioned in the order that as and
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when regular appointment done on the Post of PSI or any
administrative contingency arise, he will revert back to his
original Post i.e., ASI.
3.3. It further appears that as petitioner going to be
superannuated on 31.05.2013, having taken such fact into
account being an administrative exigency, petitioner was revert
back to his original Post i.e., ASI with effect from 30.04.2013.
Such order passed by respondent No. 2 herein on 25.05.2013
which is impugned in the petition.
3.4. All petitioners having accepted such impugned
reversion order, thereby, superannuated from their respective
services as ASI. After passing of one year, they have
challenged such impugned decision of respondent authority by
way of these petitions.
3.5. All the petitioners are claiming similar relief as stated
hereinabove; therefore, the fact of Special Civil Application
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No.9020 of 2014 is taken into account and following relief has
been prayed in the aforesaid petition, which reads as under:-
"[A] This Hon'ble Court be pleased to issue an order, writ in the
nature of mandamus and/or Certiorary, or other appropriate writ,
order or direction, declaring the impugned decision on the part of
Respondents dated 25.4.2013 to revert the petitioner from the Post
of Police Sub-Inspector as illegal, unjust, arbitrary violative of Art
14 & 16 of the Constitution of India and be pleased to quash and
set aside the same and direct the respondents to treat the
petitioner as continuously working on the Post of Police Sub-
Inspector till retirement and grant all consequential benefits to the
petitioner and further direct respondents to pay all arrears to the
petitioner with 12% interest and direct respondent no.1 to recover
the amount from the personal pay of the erring officers.
[B] Be pleased to declare the impugned decision to revert the
petitioner is malafide to deprive the petitioner of retirement benefits
and consequential benefits of Police Sub-Inspector, therefore,
declare the same in violative of Art 14 of the Constitution of India.
[C].. Be pleased to direct the respondents to fix the pension of
petitioner in the salary payable to the Post of Police Sub-Inspector
and accordingly direct respondents to grant all consequential
benefits to petitioner with 12% interest.
[D].. Be pleased to direct the respondents to pay special cost and
compensation to the petitioner and further direct respondent no.1 to
fix the responsibility on the erring officer and recover the amount of
interest, cost and compensation from the personal pay of the erring
officer.
[E].. Pending admission and final disposal of this petition be
pleased to direct the respondents to review the payment of
retirement benefits, including fixation of pension of petitioner as
Police Sub-Inspector and direct to re-fix pension and all retirement
benefits of the petitioner treating him retired on the Post of Police
Sub-Inspector.
[F].. Pending admission and final disposal of this petition be
pleased to direct the respondents to deposit the difference of
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amount before this Hon. Court, which is payable to the petitioner
treating him working on the Post of police sub inspector.
[G].. Any other and further relief this Hon. Court deem fit and
proper in interest of justice."
SUBMISSION OF THE PETITIONERS
4. Learned advocate Ms. Kamani for learned advocate
Mr.P.H.Pathak would respectfully submit that promotion order
of petitioners allowed him to work as PSI ( ad hoc) and only in
two contingencies, i.e., regular PSI appointed or any
administrative exigency, they could have been revert back to
the Post of ASI from where they were promoted. Whereas,
none of such conditions arose in the case of petitioners,
inasmuch as, neither any regular PSI got appointed on the Post
nor any administrative exigency shown by respondent authority
while passing impugned order of reversion.
4.1. Learned advocate Ms. Kamani would respectfully
submit that in similarly situated persons like petitioners, in
past, respondents have allowed such promotes ( ad hoc) to
allow them to superannuate on the Post of PSI ( ad hoc) and
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there was no reversion order came to be passed in those cases.
It is submitted that despite submitting their order of
superannuation i.e. promote (ad hoc), no specific reply filed by
respondent to counter such argument.
4.2. Nonetheless, learned advocate Ms. Kamani would
further submit that after so many years, respondent-State,
having found their mistake, appears to have passed a reversion
order in the year, 2025 in those cases, which is nothing but an
eye wash to overcome the legitimate right of the petitioners to
get retirement benefit on the Post of PSI.
4.3. Learned advocate Ms. Kamani would further submit
that when respondents have given different treatment to
petitioner than other similarly situated person, thereby,
violated Article 14 and 16 of the Constitution of India and
such arbitrary action needs to be interfered with by this Court
while exercising its power under Article 226 of the Constitution
of India.
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4.4. So making above submission, learned advocate Ms.
Kamani would request this Court to allow the present petitions.
SUBMISSION OF THE RESPONDENTS
5. Learned AGP Mr. Patel would respectfully state that as
such, there is no merit in the present petitions, in as much as,
neither any fundamental right nor any violation of Article 14
and 16 of the Constitution of India by respondents. It is
respectfully submitted that all the petitioners have waited for
quite long before approaching this Court and as such, to allow
their reversion order to operate at given point of time,
thereby, they have no right to question it.
5.1. Learned AGP Mr. Patel would respectfully submit that
promotion order of all petitioners was conditional one,
thereby, they have no indefeasible right to hold the Post of
PSI when promoted. It is respectfully submitted that as per
promotion order, it was categorically observed that in a case
where any regular selectee on the Post of PSI appointed or any
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administrative contingency arise, they will revert back to their
original position i.e., ASI.
5.2. Learned AGP Mr.Patel would respectfully submit that
when promotion was on ad hoc basis given to all petitioners
and having found that they are reaching the age of
superannuation, due to such exigency, reverted back to their
original position, thus, no fault can be found with impugned
order.
5.3. Learned AGP Mr. Patel would respectfully submit that
as per settled legal position of law, equality cannot be claimed
for any illegality. It is submitted that some instances cited by
petitioners by placing few orders of other so-called similarly
situated persons, wherein, though they were promoted on the
higher Posts i.e., PSI (ad hoc) and not revert back to their
original post before their age of superannuation, would not,
ipso facto, entitled the petitioners to claim equity / parity with
them.
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5.4. Learned AGP Mr.Patel has placed on record few orders
of reversion passed by respondent No. 2 herein dated
06.08.2025, in the cases of other similarly situated persons,
whose instances have been relied upon/cited by petitioners. On
request being made of learned AGP Mr. Patel, those orders are
taken on record.
5.5. Learned AGP Mr.Patel would further submit that as
per circular dated 18.06.1998 issued by Director General of
Police, State of Gujarat at Ahmedabad produced with the
reply, wherein also it has been clearly mentioned that in a
case where any ad hoc appointment on the Post of PSI
requires to be given, it will have to attach with a specific
condition. It is submitted that such conditions enumerated in
the promotion order of each petitioner herein. It is respectfully
submitted that when it was found by department that
petitioners are going to superannuate in near future, in that
circumstances, any reversion order passed, no illegality can be
found, inasmuch as, as per settled legal position of law, the
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petitioners have no right to retain on such promotional Post as
their initial appointment on such Post is on ad hoc basis.
5.6. To buttress his argument he would rely upon the
decision reported in State of Bombay vs. F.A.Abraham reported
in AIR (0) 1961 SC 794 and in the case of Mohammed Yakub
Dalelkhan vs. State of Gujarat and others passed in Special
Civil Application No. 12026 of 2014 dated 23.09.2014.
5.7. Making the above submission, learned AGP Mr.Patel
would request this Court to dismiss the present writ petitions.
ANALYSIS
6. Having heard the learned advocates appearing for the
respective parties and after perusing the facts and the prayers
so made in this petition, following emerges:-
6.1. It remains undisputed on record that petitioners had
been given promotion on the Post of PSI on ad hoc basis. The
order of promotion of each petitioner clearly indicates that it
was conditional promotion on purely ad hoc / temporary basis.
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It is clearly stipulated that petitioners have no right to claim
any seniority and / or to continue on such Posts.
6.2. On happing of either of two contingencies i.e., either
on appointing regular selectee on the Post of PSI or in case of
any administrative exigency, the petitioners will revert back to
their original Post i.e., ASI. All petitioners having approached
their age of superannuation, respondent thought it fit to revert
back them on their original Post i.e., ASI.
6.3. It is not in dispute that order of reversion was passed
in April, 2013 whereas the present petitions filed in April,
2014. No explanation worth name coming forth on the part of
petitioners as to why there is so much delay in filing these
petitions, especially, when all petitioners allowed themselves to
be superannuated on the Post of ASI.
6.4. This Court could have dismissed these petitions on the
ground of delay/laches, but it appears that all these batch of
petitions are already admitted then, in this peculiar facts and
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circumstances, this Court would not like to go further deep
into this aspect, rather left the issue of delay/laches kept open,
to be decided in other good case.
7. Be that as it may, the facts remained that order of
promotion of petitioner was a conditional one and having
noticed aforesaid conditions of order of promotion, thus, there
was no indefeasible right available with petitioners to claim
any continuity on the Post of PSI.
8. It is true that regularly selected candidate were not
appointed on the Post of PSI, when order of reversion of
petitioners passed by respondent-authority. Nonetheless, an
administrative exigency entitled respondent to revert the
petitioners back to their original Post. When respondent
authority having found that petitioners are going to reach to
the age of superannuation, if any administrative decision was
taken by the respondent authority to revert them back to their
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original position i.e., ASI, no illegality can be attached with
such decision impugned in this petition.
9. It is always open for respondent-authority being employer
to decide administrative exigency and discretion also left open
to employer to use it for any better administration or
otherwise. At least, this Court while exercising its power under
Article 226 of the Constitution of India, cannot decide such
administrative exigency for which, petitioners reverted back to
their original post i.e. ASI. The Court should ordinarily
refrained itself from interfering with any executive decision
unless shown it as arbitrary, violation of any fundamental
rights of petitioners or like etc.. Even it is settled law that
right to claim promotion is not considered as fundamental
right, of course right to be considered for promotion is one of
facet of Article 14 & 16 of the Constitution of India being
fundamental right of employee.
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10. Thus, in view of aforesaid, there is no merit in the claim
of petitioners that they were wrongly reverted back to their
original post from post of PSI (ad hoc).
11. As can be seen and as argued by learned advocate Ms.
Kamani appearing for the petitioner that in a case of similarly
situated persons, in past, respondents authority have allowed
other persons to retire on the Post of PSI ( ad hoc) and not
reverted them to their original Post. To counter such
argument, learned AGP has placed on record few orders passed
by respondent No. 2 herein dated 06.08.2025, thereby, an
order of reversion, albeit passed after allowing them to reach
to the age of superannuation. In view of above, aforesaid
argument of petitioner no longer survives.
12. Furthermore, it is settled legal position of law that
merely any undue advantage or any illegality committed by
respondent, in the case of other similarly situated person like
petitioners, no equality can be claimed by petitioners to grant
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such relief/benefit, which in fact appears to be contrary to the
circular of the respondent authority.
13. It would apt to refer and rely upon the decision of
Hon'ble Supreme Court in the case of Tinku vs. State of
Haryana and Others reported in 2024 SCC ONLINE SC 3292,
wherein it has been held as under:-
"11. The very idea of equality enshrined in Article 14 is a concept
clothed in positivity based on law. It can be invoked to enforce a
claim having sanctity of law. No direction can, therefore, be issued
mandating the State to perpetuate any illegality or irregularity
committed in favour of a person, an individual, or even a group of
individuals which is contrary to the policy or instructions applicable.
Similarly, passing of an illegal order wrongfully conferring some
right or claim on someone does not entitle a similar claim to be put
forth before a court nor would court be bound to accept such plea.
The court will not compel the authority to repeat that illegality over
again. If such claims are entertained and directions issued, that
would not only be against the tenets of the justice but would
negate its ethos resulting in the law being a causality culminating
in anarchy and lawlessness. The Court cannot ignore the law, nor
can it overlook the same to confer a right or a claim that does not
have legal sanction. Equity cannot be extended, and that too
negative to confer a benefit or advantage without legal basis or
justification."
(emphasis supplied)
14. At this stage, it would also be pertinent to note the
relevant observations made by Hon'ble Apex Court in the case
of F.A. Abraham (supra) wherein observed and held thus:-
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"5. We are unable to agree with the observation in M. A.
Waheed's case(1) that when a person officiating in a Post, is
reverted for unsatisfactory work, that reversion amounts to a
reduction in rank. A person officiating in a Post has no right to hold
it for all times. He may have been given the officiating Post
because the permanent incumbent was not available, having gone
on leave or being away for some other reasons. When the
permanent incumbent comes back, the person officiating is
naturally reverted to his original Post. This is no reduction in rank
for it was the very term on which he had been given the officiating
Post. Again, sometimes a person is given an officiating Post to test
his suitability to be made permanent in it later. Here again. it is an
implied term of the officiating appointment that if he is found
unsuitable, he would have to go back. If, therefore, the appropriate
authorities find him unsuitable for the higher rank and then revert
him back to his original lower rank, the action taken is in
accordance with the terms on which the officiating Post had been
given. It is in no way a punishment and is not, therefore, a
reduction in rank. It has been held by this Court in Parshotam Lal
Dhingra vs. Union of India, 1958 SCR 828 that,
"It is, therefore, quite clear that appointment to a
permanent Post in a Government service, either on
probation, or on an officiating basis, from the very nature
of such employment, itself of a very transitory character
and, in the absence of any special contract or specific
rule regulating the conditions of the service, the implied
term of such appointment, under the ordinary law of
master and servant, is that it is terminable at any time. In
short, in the case of an appointment to a permanent Post
in a Government service on probation or on an officiating
basis, the servant so appointed does not acquire any
substantive right to the Post and consequently cannot
complain, any more than a private servant employed on
probation or on an officiating basis can do, if his service is
terminated at any time."
The respondent had of course no right to the Post of Deputy
Superintendent of Police to which he had been given an officiating
appointment and he does not contend to the contrary. He cannot
therefore, without more, complain if he is sent back to his original
Post. This is what happened in this case even if it be taken that the
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respondent had been reverted to his original rank because he was
found unsuitable for the higher rank to which he had been given an
officiating appointment."
(emphasis supplied)
14.1. The ratio of the aforesaid decision would clearly
indicate that a person officiating on a Post has no right to
hold it for all times. He may have been given the officiating
Post because the permanent incumbent was not available,
having gone on leave or being away for some other reasons.
When the permanent incumbent comes back, the person
officiating is naturally reverted to his original Post. This would
not be considered as a reduction in rank for it was the very
term on which he had been given the officiating Post.
14.2. One of the previous judgment of Hon'ble Supreme
Court in the case of Parshotam Lal Dhingra vs. Union of India
reported in 1958 SCR 828 was referred in it, wherein also, it
has been so held that any appointment on officiating basis is
very transitory in character and, in the absence of any special
contract or special rule regulating the conditions of the service,
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tab implied term of such appointment, under the ordinary law
of master and servant, is that it is terminable at any time.
15. Likewise, in case of Mohammed Yakub Dalekhan (supra),
the coordinate Bench of this Court having referred Rule 85 of
Gujarat Police Manual, 1975, in almost identical factual
scenario upheld the decision of respondent-State, whereby
reverted the petitioner from the Post of PSI ( ad hoc) to ASI.
The ratio of aforesaid decision of this Court would also
applicable and helpful to the arguments of learned AGP Mr.
Patel.
16. Thus, in light of the aforesaid factual scenario of the case
and having applied the ratio of the aforesaid decisions to the
case on hand, I am of the view that there is no substance in
the argument so canvassed by learned advocate Ms. Kamani
and as such, there is no error much less any gross error of law
committed by respondent when reverted the petitioner back to
their original position from the Post of PSI (ad hoc) to ASI.
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CONCLUSION
17. In view of the aforesaid, I do not find any fundamental
right of petitioners being violated by respondents and having
so observed that merely some illegality committed by
respondents in the cases of other similarly situated persons like
petitioners, which in fact later on corrected, in any case, no
equality can be claimed by petitioners.
18. In view of the foregoing reasons and conclusion, there is
no merit found in the present petitions, which require to be
dismissed, which are hereby DISMISSED. Rule is discharged.
No orders as to costs.
Sd/-
(MAULIK J.SHELAT,J)
MOHD MONIS
