C/SCA/11550/2012 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11550 of 2012 With SPECIAL CIVIL APPLICATION NO. 11552 of 2012 With SPECIAL CIVIL APPLICATION NO. 11868 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? STATE OF GUJARAT THRO DIRECTOR OF AGRICULTURE & 3 Petitioner(s) Versus HARIBHAI J CHAUDHRI SINCE DECEASED THRU- HEIRS Respondent(s) Appearance: Mr. Ronak Raval, AGP for the Petitioner(s) No. 1 - 4 MR GUNVANT R THAKAR, ADVOCATE for the Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date :26 /02/2014 Page 1 of 19 C/SCA/11550/2012 CAV JUDGMENT CAV JUDGMENT
1. These three matters were taken up for final hearing in priority as it was pointed out that the respondent in each of the matter was senior citizen and in one matter, the respondent expired pending this petition.
2. The petitioner-State of Gujarat has challenged common judgment and order dated 26th October, 2011 passed by the Gujarat Civil Services Tribunal ("the Tribunal" for short) in three different appeals preferred by the respondents. The respondent in Special Civil Application No.11550 of 2012 had filed Appeal No. 561 of 1981. The respondent in Special Civil Application No. 11552 of 2012 had filed Appeal No. 562 of 1981. The respondent in Special Civil Application No. 11868 of 2012 had filed Appeal No. 560 of 1981. The State of Gujarat has, therefore, preferred three different petitions.
3. Since common questions of law and facts arise in all the petitions, these petitions are heard and decided together.
4. The facts noticed from the appeal memo are that the respondents who were serving as Agricultural Assistant were promoted to the post of Agricultural Supervisor with effect from 1.4.1961. They were thereafter reverted in the month of February, 1968. They challenged the above said orders of reversion by preferring three different petitions before this Court. It was their case that pending the aforesaid petitions, since they came to be promoted to the post of agricultural supervisor, they withdrew the petitions. However, since they were not granted benefit of promotion from the date of their reversion, they addressed notice through their advocate however even after waiting for about four years since no benefit was given by the Deputy Director, they approached the Director but the Director has by his letter dated 14.8.1981 turned down their request. The respondents therefore challenged letter dated 14.8.1981 of the Director in the above said appeals with a prayer to quash and set aside the order of reversion. The respondents also prayed to treat them as Agricultural Supervisor from 15.4.1968 till 21.10.1973, the date when they were again promoted and to give benefit of difference of pay and allowances for the said period.
5. As could be seen from the record of the case, the Tribunal had initially dismissed the appeals on the ground of limitation by order dated 15.12.1992. This order was challenged by the respondents by preferring Special Civil Application No. 8710 of 1993 before this Court. This Court set aside the order made by the Tribunal and remanded matters to the Tribunal for decision of dispute on merits.
6. The Tribunal then decided the appeals and held that as per the seniority of Agricultural Supervisor as determined in accordance with the judgment of the Hon'ble High Court in Special Civil Application No. 1890 of 1972, the respondents were completing 7 years of service on the basis of deemed date assigned to them. The Tribunal considered resolution dated 16.3.1988 and 5.8.1988 and letter dated 3 rd September, 1973 of the Director of Agriculture for the purpose of giving benefit of deemed date. The Tribunal came to the conclusion that the agricultural supervisors who were completing seven years of service on the basis of deemed date were to be retained in the same rank and found the respondents entitled to be retained in the cadre of agricultural supervisor. The Tribunal thus allowed the appeals and held that the respondents were entitled to be retained with continuity from the date of their original promotion and set aside the order of reversion of the respondent and also ordered to fix pay and allowances of the respondents from the date of original promotion and to pay them arrears. It is this common judgment and order passed by the Tribunal which is under challenge before this Court in these three petitions.
7. I have heard the learned advocates for the parties.
8. Learned Asstt. G.P. Mr. Ronak Raval appearing for the respondent State submitted that the promotion of the respondents vide order dated 18 th March, 1961 were purely byway of temporary measure and in excess of 5% quota because of non-availability of sufficient number of qualified persons for the post of Agricultural Supervisor. Mr. Raval submitted that in order dated 18th March, 1961, clear condition was laid that the respondents shall not claim any seniority over other seniors by virtue of their promotion and that they shall be liable to reversion at any time if anybody emerges senior to them. Mr. Raval submitted that vide resolution dated 16.3.1968 it was decided that since the promotions to the post of agricultural supervisor were given to the extent of 33% of the posts and since the ratio for promotion to such post was only of 5%, only those agricultural supervisors who had completed seven years or more as on 1 st February, 1968, shall be absorbed in the cadre of agricultural supervisor. Since the respondents were not completing seven years service on the post of agricultural supervisor as on 1 st February, 1968, they were required to be reverted. Mr. Raval submitted that the subsequent Circular dated 5th August, 1968 would not make the reversion orders of the respondents illegal. Mr. Raval submitted that the said circular was only for the purpose of adjusting the seniority amongst the agricultural supervisors by taking the date of appointment to the post of agricultural assistant. Mr. Raval submitted that the case of the petitioner is otherwise also barred by the principles of constructive res- judicata in as much as the challenge made to the orders of their reversion before this Court was withdrawn unconditionally by the respondents on their getting subsequently promoted to the post of agricultural supervisor. Mr. Raval submitted that the Tribunal has seriously erred in placing reliance on the communication dated 3rd September, 1971 of the Director of Agriculture for the purpose of giving benefit of deemed date to the respondents. Mr. Raval submitted that the said communication was not final and it was purely for the purpose of fixing seniority on the cadre of agricultural supervisor by taking the date of appointment of the respondents on the post of agricultural assistants. Mr. Raval submitted that even as per the circular dated 5thAugust, 1968, it was provided that on finalization of the deemed date for the purpose of seniority for the post of agricultural supervisor, there was no automatic absorption of the respondents in the cadre of agricultural supervisor. Mr. Raval submitted that in the said circular, it was decided that the absorption of employees who were reverted was to the extent of 15% quota after fixing the seniority in the cadre of Agricultural Assistants. Mr. Raval submitted that in view of such provisions made in the said circular dated 5 th August, 1968, it cannot be said that the the respondents were to be given deemed date of promotion in the cadre of agricultural supervisors as if their promotion was regular and they were wrongly reverted. Mr. Raval submitted that though the written instructions were placed on the record of the appeals before the Tribunal to point out the purpose for fixation of seniority and subsequent finalization of seniority in the cadre of agricultural supervisor, the Tribunal has failed to consider the real purpose for which the seniority was to be fixed in the cadre of agricultural supervisor. Mr. Raval thus urged to allow these petitions.
9. As against the above submissions, learned Advocate Mr. Gunvant R. Thakar appearing for the respondents submitted that the respondents were done with injustice in the matter of giving them promotion to the post of agricultural supervisor though they were very much entitled to such promotion according to their seniority in the cadre of agricultural assistant. Mr. Thakar submitted that as per the deemed date provided to the respondents in the cadre of agricultural assistant, the respondents though were completing seven years of service as on 1st February, 1968, still they were reverted by taking wrong date of their seniority in the cadre of agricultural assistants. Mr. Thakar submitted that if on the basis of deemed date in the cadre of agricultural assistant, when the respondents had completed more than seven years of service in the cadre of agricultural supervisors, the respondents were required to be absorbed as agricultural supervisor instead of reverting them. Mr. Thakar submitted that while the petitions filed by the present respondents challenging the orders of their reversion were pending, the Director of Agriculture passed order for restoration of their original position as agricultural supervisor with benefit of deemed date for such post. Mr. Thakar submitted that in view of such order of the Director of Agriculture, since the respondents got promotions, respondents withdrew their petitions. However, since the respondents were not given the benefit of deemed date for the post of agricultural supervisor, respondents were constrained to file the appeals before the Tribunal. Mr. Thakar submitted that in such facts of the case, the principles of constructive res judicata would not be applicable to the case of the respondents. Mr. Thakar submitted that the Tribunal has correctly applied the resolution dated 5th August, 1968 to the case of the respondents and has not committed any error in giving benefit of deemed date on the post of agricultural supervisors to the respondents. Mr. Thakar submitted that the decision of the Tribunal is not only on correct interpretation of the circular dated 5 th August, 1968 but also in consonance with the decision of this Court in Special Civil Application No. 1890 of 1972 and in consonance with the order dated 3 rd September, 1973. Mr. Thakar submitted that the petition at the instance of the State challenging the order of the Tribunal is not maintainable. Mr. Thakar, thus, urged not to interfere with the order passed by the Tribunal.
10. Having heard the learned advocates for the parties and having perused the record of the petitions, it appears that the promotions given to the respondents vide order dated 18 th March, 1961 were purely by way of temporary measure as stated in the order itself and the respondents were liable to be reverted at any point of time. By Resolution dated 16 th March, 1968, the Government decided to absorb only those agricultural supervisor who had completed service of seven years or more as on 1st February, 1968 from the date of their promotion. Such decision was required to be taken as the promotions given to the agricultural assistants as agricultural supervisor were in excess of 5% quota fixed for agricultural assistants. The Government decided that those agricultural supervisors who had completed seven years or more as on 1 st February, 1968 shall be absorbed even beyond the quota of 5% but then, since the respondents were not actually completing the service of 7 years from the date of their appointment on the post of agricultural supervisor as on 1 st February, 1968, they with other similarly situated agricultural supervisors were reverted in the month of February, 1968 and the Government gave benefit of absorption as per its resolution dated 16th March, 1968 to those agricultural supervisors who were found to have completed the service of 7 years or more as on 1st February, 1968.
11. The Government then issued resolution dated 5.8.1968 which is found quoted in the impugned order of the Tribunal. By the said resolution, the Government decided to give deemed date to agricultural assistants for their absorption seniority wise. It was provided in the said resolution that after fixing such deemed date by taking seniority in the cadre of agricultural assistants, the reverted agricultural assistants shall be absorbed in the cadre of agricultural supervisors and after such absorption to the extent of 15% quota, if it was not possible to absorb the remaining reverted agricultural assistants, then, their case shall be considered for panchayat service in place of agricultural supervisors who were required to be treated in Government service from panchayat service so that the question of their reversion in future might not arise. However, on interpretation of the Resolution dated 5 th August, 1968 and relying on the communication of the Director of Agriculture dated 3rd September, 1973, the Tribunal came to the conclusion that the respondents were entitled to all benefits in the cadre of Agricultural Supervisor as per the deemed date.
12. From the above resolution, it appears that the deemed date was required to be fixed by considering the seniority in the cadre of agricultural assistant for the purpose of absorption of remaining agricultural assistants who were promoted and required to be reverted. The purpose was to see that their seniority may be maintained in the cadre of agricultural supervisor after they could be absorbed. But such resolution was not for giving deemed date of regular promotion in the cadre of agricultural supervisor. If the respondents and such other agricultural assistants were entitled as a matter of right for promotion to the post of agricultural supervisor, there was no question of Government deciding to absorb them in phase- wise manner. From the above angle, communication dated 3 rd September, 1973 considered by the Tribunal is required to be read. It is required to be noted that as per the said communication, the respondents were required to be restored to the position of agricultural supervisor by considering their deemed date in the gradation list of agricultural assistants.
13. In Special Civil Application No. 933 of 1969 and allied matters, the Court had considered the resolution dated 16 th March, 1968 and 5th August, 1968. In all those petitions, orders of reversion were challenged. The facts recorded by the court are reproduced as under:
" In the Department of Agriculture, Government of Gujarat there are posts of Agricultural Supervisors. Recruitment to the posts of Agricultural Supervisors was made from two sources. Agricultural Assistants are promoted to be Agricultural Supervisors and the Agricultural Supervisors were directly recruited. Agricultural Supervisors with whom I am concerned in these petitioners have been working in two divisions of the State of Gujarat Baroda Division and Rajkot Division. For direct recruits to the posts of Agricultural Supervisors the minimum qualification which was necessary was that he must be a Graduate in Agriculture. Prior to 1968, the ratio between direct recruits and promotees appointed to the post of Agricultural Supervisors was 95:5. However, direct recruits with two requisite educational qualification were not available in sufficient numbers. Therefore, a large number of Agricultural Assistants were promoted to be Agricultural Supervisors in excess of their ratio of 5%. The petitioners in all these petitions were Agricultural Supervisors who were at one time or another promoted to be Agricultural Supervisors.
Under Article 309, the Governor framed the Gujarat Agricultural Supervisor Recruitment Rules, 1968. They came into force on 16th March, 1968. By these Rules, the ratio between direct recruits and promotees, so far as the posts of Agricultural Supervisors were concerned, was changed from 95:5 to 85:15. This ratio was introduced with effect from 1st February, 1968. The petitioners who are promotees to the posts of Agricultural Supervisors were sought to be reverted to their substantive posts of Agricultural Assistants in 1969 and thereafter when more direct recruits became available and the Government wanted to restore the ratio of 85:5. Subsequently, the Government issued a Circular and decided that those Agricultural Supervisors who had been promoted from amongst Agricultural Assistants and who had held their posts for seven years or more as Agricultural Supervisors should not be reverted. It appears that the question arose thereafter as to how to compute the period of seven years. The Government, therefore, issued another Circular by which it laid down that the period of seven years ought to be computed not from the real date of promotion of a promotee as an Agricultural Supervisor but from a deemed date and that that period of seven years ought to have expired on 1st February, 1968.
It appears that a large number of petitioners have been in Government service for a very long time. Most of them have been affected by these two decisions."
14. Following were the contentions raised in those petitions:
"(1) The fixation of deemed date by Circular dated 5 th August, 1968 is arbitrary and, therefore, violative of Article 14 and 16 of the Constitution.
(2) After having promoted the Agricultural Assistants as Agricultural Supervisors, they cannot be reverted to their substantive posts of Agricultural Assistants in order to make room for direct recruits who were subsequently appointed. This cannot be done even for restoring the aforesaid quota of 85:15. The quota rule cannot operate retrospectively so as to upset or disturb the appoints already made.
(3) Direct Recruits and Promotees to the posts of Agricultural Supervisors constitute a common cadre and they must be treated equally. In the instant case, they have not been treated equally. "
15. While dealing with the contentions raised on behalf of the petitioners in those petitions, the Court observed as under :
" In support of the first contentions, Mr. Qureshi has invited my attention to the Government resolution passed on 16th March, 1968. In the preamble to that resolution, it has been stated that a fairly good number of Agricultural Assistants have been promoted as Agricultural Supervisors in excess of their former quota of 5 per cent because of non-availability in sufficient numbers of qualified direct recruits. Since the qualified direct recruits have become available in sufficient numbers, the question has arisen as to who should be retained as Agricultural Supervisors from amongst the promotees and who should be reverted to their substantive posts of Agricultural Assistants. Having considered the aforesaid situation, the Government by the aforesaid resolution decided that those Agricultural Assistants who had completed their continuous unbroken service as Agricultural Supervisors for seven years as on 1st February, 1968 should be retained as Agricultural Supervisors even if their retention was in excess of the quota fixed for the promotees. This resolution helped the petitioners in Special Civil Application No.933 of 1969, 1095 of 1969, 1096 of 1969, 1449of 1969 1491 of 1969 and 140 of 1970 and the petitioner No.1 in Special Civil Application No.1244 of 1969. Thereafter, on 5th August, 1968, the Government passed another resolution by which it laid down for an Agricultural Supervisor (promoted from the post of an Agricultural Assistant) the deemed date of his appointment as an Agricultural Supervisors as distinguished from his actual date of appointment. It was from that deemed date that seven years unbroken and continuous service was to be computed in terms of first mentioned resolution dated 16th March, 1968. On analysis of the Government Circular dated 5th August, 1968, it makes it quite clear that it gives a go by to the actual dates of appointments of Agricultural Supervisors who were promoted from the posts of Agricultural Assistants. The question which has been raised before me by Mr. Qureshi is that there are no principles laid down for the purpose of fixing the deemed date and that, therefore, the concept of deemed date introduced by the aforesaid Circular is arbitrary. The learned Government Pleader in reply has asked me to closely peruse the aforesaid Circular dated 5th August, 1968. On the basis of that Circular he has submitted that it applies to the promotees - Agricultural Supervisors only. It lays down that the seniority of a promotee Agricultural Supervisors shall be determined according to the seniority which they had as Agricultural Assistants irrespective of the date of their promotion as Agricultural Supervisors. In practice this principle works out in the following manner. If a senior Agricultural Assistant was promoted as an Agricultural Supervisor later than a junior Agricultural Assistant was promoted as an Agricultural Supervisor, the seniority of a junior Agricultural Supervisor who was senior as an Agricultural Assistant would be so fixed by the deemed date as to make his senior as an Agricultural Supervisor to one who was junior to him as an Agricultural Assistant even though the latter might have been promoted earlier. He has next submitted to me that the seniority of Agricultural Supervisors in their substantive posts of Agricultural Assistants is not at all disturbed. By virtue of that Circular, it remains as it was. The Circular only rules out the fortuitous circumstances on account of which a junior Agricultural Assistant might have been earlier promoted as an Agricultural Supervisor than a senior Agricultural Assistant was promoted to that post. The Circular in terms stated that the deemed date of appointment of an Agricultural Assistant as an Agricultural Supervisor shall be fixed without disturbing in any manner whatsoever the original seniority of both these persons as Agricultural Assistants. In other words, the object of the Circular is to bring the seniority of promotee Agricultural Supervisors appointed haphazardly and on different dates in conformity with their seniority as Agricultural Assistants. The concept of deemed date which is based upon the aforesaid principles does not, in the submission of the learned Government pleader violate Article 14 and 16. [Emphasis supplied] In support of his contention, he has invited my attention to the decision of the Supreme Court in Anand Prakash Saksena Vs. Union of India and others AIR 1968 Supreme Court 754. As a result of the operation of the aforesaid principle, not only the promotee-Agricultural Supervisors are affected inter se but a large number of them have to be reverted to their substantive posts of Agricultural Assistants so that direct recruits may be appointed. The question is whether the fixation of such deemed date can be said to be arbitrary and therefore, violative of Article 14 and 16. If the deemed date of appointment of an agricultural assistant as an agricultural supervisor was left to be fixed in such a manner as the Government in such individual case thought fit, it would have been certainly arbitrary and violative of Article 14 and 16. In the instant case, that is not the situation. The deemed date of appointment of an Agricultural Assistant as an Agricultural Assistant. The concept of deemed date in other words has been introduced in order to reestablish amongst the promotee-Agricultural Supervisors the seniority which they enjoyed as Agricultural Assistants. Firstly, the basic principles which governed the fixation of deemed date is not an arbitrary principle but is founded on a sound consideration of reestablishing amongst the promotee - Agricultural Supervisors the seniority which they enjoyed as Agricultural Assistants in their substantive posts. Secondly, all the Agricultural Supervisors promoted from amongst the Agricultural Assistants have been officiating in their posts as Agricultural Supervisors. Their officiating an Agricultural Supervisors does not land to the accrual in their favour on any right to hold their posts and to be governed in the matter of their seniority by the length of their service as Agricultural Supervisors. Their officiation as Agricultural Supervisors has mainly given them a temporary benefit to hold a higher post and draw higher emoluments to which they would not have been entitled otherwise. Therefore, if the concept of deemed date has been introduced and if it to be fixed only for the purpose of reestablishing amongst promotee-Agricultural Supervisors the seniority which they enjoyed in their substantive posts of Agricultural Assistants, it cannot be said to be arbitrary and capricious. The principles of deemed date laid down by the aforesaid Circular in computing the seniority of the promotee-Agricultural Supervisors inter se does not suffer from any vice or infirmity so as to be offensive or violative of Article 14 or
16. The view which I am taking finds support from the decision of the Supreme Court in Anand Prakash Saksena vs. Union of India and others,AIR 1968 Supreme Court,
754. In that case, the Supreme Court was considering the IAS Recruitment Rules, 1954, IAS Cadre Rules, 1954 and Indian Administrative Service (Seniority of Special Recruits) Regulations, 1960. [Emphasis supplied].
It may be stated that this concept of deemed date laid down by the Circular dated 5th August, 1968 governs all Agricultural Supervisors, who were, though junior as Agricultural Assistants, promoted as Agricultural Supervisors earlier and also the Agricultural Supervisors who, though they were senior as Agricultural Assistants, were promoted as Agricultural Supervisors subsequently on account of the exigencies of service or on account of same fortuitous circumstances. Mr. Qureshi has contended that all promotions granted to Agricultural Assistants to be Agricultural Supervisors prior to 16 th March, 1968 which is the date of the Government resolution above referred to were regular. Therefore, the promotee-Agricultural Supervisors cannot be made to suffer by the introduction of this concept of deemed date nor can they be put to any disadvantage in that behalf. Mr. Qureshi has looked at the question from a slightly different angle. The question, in my opinion, is not whether the promotee-Agricultural Supervisors have been put to any disadvantage by the introduction of the concept of deemed date but the question is whether they should be allowed to hold higher posts for all time to come even though they were not entitled to them on account of their actual seniority as Agricultural Assistants. If we look at the problem from this angle, it become quite clear that the higher posts and the higher emoluments to which they were not entitled by virtue of their comparative seniority as Agricultural Assistants were made available to them for some time. They continued to enjoy them as long as the exigencies of service permitted them to enjoy them. If they are now reverted to their substantive posts on account of which they loss their temporary benefits which came to them, they cannot beheld to complaint against it. "[Emphasis supplied].
16. In Special Civil Application No.1890 of 1972, the question was about placing those persons in the seniority list of Agricultural Supervisors who had put in seven or more years of continuous service in the cadre of agricultural supervisor as on 1st February, 1968 as per Government Resolution dated 5.8.1968. The Court concluded that by virtue of the Government Resolution dated 16th March, 1968 read with Government Resolution dated 5th August, 1968, appointment of agricultural assistants as agricultural supervisor must be taken to have been made in super-cession of the quota rule and therefore, they should be treated to have been appointed and absorbed as such in the higher cadre for all practical purposes, and directed to place them in seniority list by determining their seniority as per G.R. Dated 5.8.1968.
17. From what was held above, it clearly appears that the benefit of deemed date as per resolution dated 5 th August, 1968 was only to ensure that the agricultural supervisors retain their seniority as per the date of their appointment in the cadre of agricultural assistant so that they may not have to suffer as regards seniority in the cadre of agricultural supervisor but that does not mean that they were actually entitled to the benefit of deemed date of promotion in the cadre of agricultural supervisor. Additionally, when the petitioners had unconditionally withdrawn their petition wherein challenge to the reversion orders was made, by principles of constructive res judicata, they were not entitled to challenge the same in appeals. Therefore, the Tribunal was not justified in giving pay and allowances to the respondents for the period from the date of their reversion to the date they were again promoted. As stated by learned A.G.P. Mr. Raval, the seniority of Agricultural Supervisor was finalized long back. However, even if there remains any grievance about fixation of seniority, it cannot be decided at this belated stage.
18. The contention that the petitions at the instance of the State Authorities are not maintainable cannot be accepted as all the appeal preferred by respondents were virtually for benefits of the deemed date of promotion. The State therefore is entitled to challenge the order of the Tribunal whereby it held the respondents entitled to pay and allowances by giving deemed date to them. In view of the above, the oral judgment dated 4.3.2011 in SCA No.5356of 2011 relied on by Mr. Thakar will have no application to the facts of the cases.
19. For the reasons stated above, these petitions are allowed. The common judgment and order dated 26 th October, 2011 passed by the Gujarat Civil Services Tribunal in Appeal No. 561 of 1981; 562 of 1981 and 560 of 1981 are hereby quashed and set aside. The appeals of the respondents are dismissed. Rule is made absolute in each of the petitions.
(C.L.SONI, J.) anvyas