IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7158 of 1995 with SPECIAL CIVIL APPLICATION No 7933 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? Hos7os~N~oC o_C JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ -------------------------------------------------------------- V R RATHWA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 7158 of 1995 MR KB PANDE for Petitioners Mr. S.N.Shelat, Addl. Advocate General with Mr. D.A.Bambhania, Solicitor to Government for respondents. 2. Special Civil ApplicationNo 7933 of 1995 MR KB PANDE for Petitioners Mr. S.N.Shelat, Addl. Advocate General with Mr. D.A.Bambhania, Solicitor to Government for respondents. Hos7os~N~oCoo_C -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI Date of decision: 24/06/96 ORAL JUDGEMENT The petitioners in both these petitions have challenged the final eligibility list of the employees who have passed the Lower Revenue Qualifying Examination (LRQE) and Higher Revenue Qualifying Examination (HRQE), published under the Government Circular dated 9th March, 1995 as per Annexure "A" in both these petitions. Special Civil application No. 7158 of 1995 was filed on 21st August, 1995 and the six petitioners of that petition have also challenged their reversion order dated 6.9.1995. The petitioners of Special Civil Application No. 7933/95 have also challenged their reversions under the order dated 6.9.1995. These reversions are from the post of Mamlatdars to which they were appointed on adhoc basis to the Deputy Mamlatdars' post. The petitioners belong to the Subordinate Revenue Service. Initially, they belonged to the Lower Division of the Subordinate Revenue Service and by passing the Lower Revenue Qualifying Examination, they became qualified to be appointed in the Upper Division of the Subordinate Revenue Service. The Subordinate Revenue Service as defined under the Rules includes persons appointed as Clerks, Circle Inspectors and Typists in the Lower Division and Deputy Mamlatdars and Circle Officers in the Upper Division. The post of Mamlatdar is a Post higher to the posts in Upper Division of the Subordinate Revenue Service. Those aspiring to become Mamlatdars are required to pass the Higher Revenue Qualifying Examination. There are two sets of Rules for regulating conditions of service of persons recruited in Revenue Subordinate Service in so far as they relate to passing of the Gujarat Lower Revenue Qualifying Examination and the Gujarat Higher Revenue Qualifying Examination. The Gujarat Lower Revenue Qualifying Examination Rules were published under the Notification dated 18.3.1978 and the Gujarat Higher Revenue Qualifying Examination Rules were published under the Notification dated 1.1.1980. Of these, the Gujarat Lower Revenue Qualifying Examination Rules, 1978 became subject matters of intense controversy in earlier proceedings and the Constitutionality of the rules which were challenged earlier was upheld by the Division Bench of this Court in a group of petitions, Special Civil Application No.2860 of 1983 etc. decided on 16.12.1983, which decision came to be confirmed by the Supreme Court in Civil Appeal No. 1675 of 1984 and other matters decided on 2.5.1986. Two petitions as a sequel of that decision - Special Civil Application No. 4615/86 and Special Civil Application No. 4744 of 1986 came to be considered and decided by the Division Bench on November 7, 1990, reaffirming the earlier decision. In the group of matters which was decided on 16.12.1983, the Court had given certain directions stating that the District Collector concerned should prepare the seniority list on the principles indicated therein in each of the Districts. This was necessary because the cadre of Deputy Mamlatdars which was in the Upper Division of the Subordinate Revenue Service is a District level cadre. The Collectors were given a direction to arrange seniority in the case of Deputy Mamlatdars of the concerned persons and other eligible persons under their respective Collectorates in the light of these directions. It was also directed that having arranged seniority of concerned employees accordingly, proper orders of reversion will have to be passed by the concerned authorities. As per the principles laid down for preparing the seniority list which were to be followed by the District Collectors, the clerks who had passed the qualifying examination i.e. LRQE within the specified period and specified chances were entitled to rearrangement of seniority inter-se with the persons of their own class on the basis of Rule 9. Those who were senior to them but had passed the examination subsequently and beyond the specified period and chances were held to have no claim over those who fall under Rule 9. Those who fall under Rule 9 become eligible for promotion when they acquire qualification by passing the examination and that day should determine their eligibility in the matter of promotion. It was held that there was no question of readjustment as between persons of their class and persons who may be senior to them, but who passed the examination subsequently beyond the specified period and chance. It was directed that the seniority of those who passed beyond the specified chances and period will depend on the date of eligibility and that in turn being the date of their acquiring the examination qualification. Therefore, first they have to be ranked on that basis and thereafter, adjustment has to be made by placing such seniors in the clerical cadre who have passed examination later over their juniors in the same class, subject to the rule that they would not get their seniority as against those juniors who have not only passed but have actually been promoted. As regards those who have not passed the examination, it was held that they had no claim in the list and therefore, they need not be ranked and their reversion could be effected even before preparing the final list. The Collectors were expected to prepare the lists as per the guidelines within a period of three months from the date of the receipt of the writ by the Government. In the decision rendered on November 7, 1990, the Division Bench negatived the challenge against the list prepared by the Collector, Valsad and in the process held that the persons who had passed the LRQE beyond the stipulated chances and period (described as `late latifs' in the judgement) would generally be treated as senor to regulars i.e. those who passed it within the prescribed chances later on, subject to operation of Rule 9 of the LRQE Rules. It was held that such late latifs will be treated as senior to regulars passing in the same examination subject to the rider that if on account of operation of Rule 9 of LRQE Rules, a regular who pass subsequently is to be placed above a regular who might have passed earlier and in carrying out that exercise, if seniority positions of late latifs are to be adversely affected and the latter are to be pushed down, then it would be a permissible exercise. It was held that when the question of fixing inter-se seniority of clerk, clerk-cum-typist and typist for the purpose of eligibility for promotion to the post of Deputy Mamlatdar crops up in the light of result of a given Departmental Examination, the following steps have to be taken by the concerned authorities:- (1) It has to be first ascertained whether there are clerks who have passed the examination within specified chances and specified period and who may be treated as regulars; (2) To ascertain whether in the aforesaid category of clerks, there are any clerks who may be required to be subjected to rule 9 while fixing their inter-se seniority, as eligible clerks fit for promotion to the cadre of Deputy Mamlatdar. (3) If such operation of 9 qua regulars is to be pressed in service, then to that extent, late latifs will have to be pushed down in seniority while fixing their eligibility for promotion to the post of Deputy Mamlatdar. (4) If such operation of rule 9 qua regulars is not attracted, then parent seniority of clerks in the combined cadre of clerks, clerk-cum-typists and typists will be pressed in service for fixing inter-se seniority of regulars on the one hand and late latifs on the other. (5) So far as late latifs are concerned, their seniority for the purpose of eligibility for promotion will be worked out subject to operation of proviso to rule 7 amongst the late latifs only. It was held that these five steps will have to be taken every time when inter-se seniority of eligible clerks for promotion to the post of Deputy Mamlatdar's cadre is to be fixed and reshuffled in the light of results of concerned examination taken from time to time. It was held that this may result in pushing down of late latifs in subsequent seniority list in the light of subsequent examination results by new comers - regulars subject to the rider that this pushing down by new comers - regulars will be confined to result of two succeeding examinations only following the current examination where the concerned late latifs passed the examination and extending to a further period spread upto two more such successive examination and not beyond that period. Thereafter, Special Civil Applications Nos. 2224/93 and 2213/93 which also had a bearing on the question of preparation of the list of such qualified persons and their inter-se seniority came up for consideration before Hon'ble Mr.Justice N.J.Pandya and by an order dated October 26, 1994 while disposing of these petitions, it was directed that while preparing the list of eligible candidates, the concerned authorities shall also have to bear in mind over and above the said requirement (of preparing the District-wise seniority of Deputy Mamlatdars) in the light of the earlier judgements and the Rules, the requirement of HRQE Rules. It was noted that seniority list was not prepared in time and the vexed question of Scheduled Castes and Scheduled Tribes candidates was being considered and that the provisional list was prepared as on Feb., 1994 to which objections were invited in response to which more than 800 objections were received. It was further observed that this necessarily involved exercise of examination of each of the claims and in the meantime there might be occasions either to promote or to revert somebody on account of the exigencies of the Department or on account of the post falling vacant on regular basis. It was observed that "in either event or even for the purpose of carrying out the aforesaid exercise, the aspects mentioned above namely continuous officiation, LRQE as well as HRQE, as the case may be in respect of each of the candidates will have to be considered and if circumstances so warrant applied". It was directed that the concerned authorities should "specifically bear in mind the requirement of HRQE Rules when dealing with the aspect of preparing the list for eligible candidates and promoting a person therefrom or reverting a person from the post of Mamlatdar and the Department shall act on the basis of various judgements that are pronounced by the Court pertaining to implementation of roster, LRQE Rules, date of continuous officiation and as indicated earlier, wherever required HRQE Rules also". It was also observed that person who ought to have promoted earlier but were left out would be given a deemed date and the persons who should not have been promoted earlier, but were promoted can be reverted strictly in accordance with the Rules. After the above directions were given by Hon'ble Mr.Justice N.J.Pandya on 26th October, 1994, the Government has published the impugned list of the persons who had passed Lower Revenue Qualifying Examination and the Higher Revenue Qualifying Examination. This list is in reality an eligibility list prepared for the purpose of giving promotion to the higher post of Mamlatdar and it consists of the persons working as Deputy Mamlatdars in different Districts, who had passed both the LRQE and the HRQE under the said Rules. The list is prepared with a view to give promotions to the posts of Mamlatdar in respect of vacancies which arose during the period from 1977 - 1991 as stated in the last paragraph of the circular dated 9th March, 1995, under which this list was published. The eleven petitioners of these two petitions are persons who had passed the LRQE as well as the HRQE within the specified chances and period. Their grievance is that they are not assigned their rightful higher place in the eligibility list as a result of which they have now come to be reverted. The learned Counsel Mr. Pande appearing for the petitioners in both these petitions has strongly contended that the impugned list at Annexure "A" has been prepared contrary to the LRQE Rules and the HRQE Rules and it is in contravention of the guidelines which were given by this Court earlier, as also the decisions of the Supreme Court. It was submitted that there were several instances in this impugned list which showed that persons who had passed the Lower Revenue Qualifying Examination beyond the prescribed period were placed above those who had passed within the prescribed period and chances. It was contended that the employees who had passed the examination beyond the prescribed chances and period can never be placed above the employees who had passed within the prescribed chances and period. The former who are described as "late latifs" must be placed below all those who have passed within the prescribed chances and period. He submitted that the late latifs who had passed LRQE after such regulars, but were shown higher in the impugned list have been referred in paragraph 8 of Special Civil Application No. 7158 of 1995. They are at serial Nos. 52, 60, 62, 64, 67, 100 130, 133, 135, 150, 358, 388, 1080 - 1098, 1361 1365, 1480 - 1482, 1566 and 1567. Besides these persons, he also referred to the fact that names of two employees appear twice at different serial numbers. The name of Mr. D.D.Wagh appears at serial Nos. 219 and 1969 and that of Mr. H.C. Shah appears at sr.nos. 119 and 359. He also referred to one Mr.J.R.Gadhvi at serial No. 154, and submitted that though he was a `late latif'as shown in the list in passing the HRQE, his name was placed much above the regular passers. Referring to the `late latifs' from the list he submitted that the petitioners were wrongly shown below them and were entitled to be placed above all such late latifs, because they had passed the examination in the prescribed chances and period. It was submitted that all the `late latifs' should be placed below all the regulars at the bottom of the list. He submitted that the defects in the list indicated total non-applicability of mind in preparing it. He further argued that a mere look at the impugned list would show that the names are arranged according to the original seniority in the clerical cadre and no attempt was made to prepare the list as per the guidelines laid down by the Division Bench in the earlier decisions. He also argued that the petitioners were already promoted as Mamlatdars and there was therefore, no question of readjustment of inter-se seniority of the petitioners and those who were not yet promoted as Mamlatdars. He contended that no personal hearing was given to those who had objected against the provisional list. He has also contended that the petitioners who are Scheduled Castes and Scheduled Tribes persons were entitled to get promotion on roaster points irrespective of inter-se seniority. It was argued that there could not have been any dereservation made of the seats which were ear-marked for Scheduled Castes and Scheduled Tribes. It was finally contended that before passing the impugned order of reversion, the petitioners were not given any hearing and therefore, the reversion orders were invalid. The learned Additional Advocate General Mr.S.N.Shelat appearing for the authorities contended that the cadre of Deputy Mamlatdars was a District cadre while the cadre of Mamlatdars was a State cadre and therefore, the seniority in the Deputy Mamlatdar's cadre has to be viewed district-wise, on the basis of the seniority in Deputy Mamlatdar's cadre as fixed in accordance with the LRQE Rules. The State cadre list is to be worked out for Mamlatdars' post on the basis of HRQE Rules. He submitted that the promotions which were earlier given to the Mamlatdars' post were all subject to the outcome of the petitions and the directions that may be given by the Court for preparing the list. He submitted that these petitioners who were being reverted were to be replaced by Scheduled Castes and Scheduled Tribes candidates, who were senior to them and who had also passed the examination within the prescribed chances and period and were senior to these petitioners. He submitted that the impugned list has been prepared keeping in view the guidelines given by the Division Bench earlier and the LRQE and HRQE Rules. Some errors which had crept in have been rectified by issuing orders on 4th June, 1996, a copy of which was placed on record and also supplied to the other side. The Government had issued the said communication to all the District Collectors pointing out the typing and other errors which had crept in through over-sight in the impugned list. The Government had also sought for information in respect of those who had passed the Higher Revenue Qualifying Examination after September, 1991, so that a further list of the Deputy Mamlatdars could be prepared. It was submitted by learned Additional Advocate General, that if any other obvious error is pointed out by the petitioners or any other interested person from the impugned list, the Government would consider the same and issue necessary corrections in consonance with the policy on the basis of which the list is prepared. It was submitted that all the `late latifs' were not required to be placed below all the regulars as contended on behalf of the petitioners and the matter was to be decided in light of the guidelines given by the Division Bench, more particularly on 7.11.1990 in Special Civil Application No. 4619 of 1986, in this regard. It will be noted from the impugned list that so far HRQE is concerned, all the incumbents upto serial No. 1946 have passed their HRQE within the prescribed chances and period. In the list, serial No. 154 - J.R Gadhvi was shown to have passed the HRQE as a `late-latif', but that was a mistake, which has been corrected as Mr.Gadhvi was in fact a regular who had passed the HRQE within the prescribed chances and period. Therefore, the argument which was developed with regard to Mr. J.R.Gadhvi on the footing that he was the late latif would not stand. The same is the case with serial No. 166 - D.R Parekh, who was wrongly shown in the list to have passed the HRQE as a `late latif', but, that mistake has now been corrected since he was really a regular who had passed the HRQE within the prescribed chances and period. Therefore, so far the HRQE is concerned, no person who has passed the HRQE beyond specified period and chances is placed above any of the petitioners who have passed that examination within the specified period and chances. This is why at the hearing attack was concentrated on behalf of the petitioners on the `late latifs' at the LRQE and it was contended that they could not have been shown above the petitioners who had passed the LRQE as regulars. The direct recruits are required to pass the LRQE within the probational period of 2 years as per Rule 3 of the LRQE Rules and if a direct recruits fails to clear the examination within the specified period, the period can be extended to not exceeding 3 years if his service is otherwise satisfactory and he is required to pass the examination in not more than 3 chances in all. As regards the persons of Lower Division of Subordinate Service eligible for appointment to a higher post in the Upper Division, the requirement to pass the examination is laid down under Rule 4(1). Such a person is required to pass the examination after completion of five years of continuous service and within three years from the date he is granted permission to appear at the examination for the first time. Under Rule 5 the examination is to be passed in not more than three chances within the specified period. The chances availed of under the old Rules are to be counted as having been availed of under the said Rules of 1978. The Scheduled Caste and Scheduled Tribe persons are given one additional chance. Under Rule 6(1), service of a direct recruit not clearing the examination as required by the Rules, is to be terminated forthwith. The consequence as regards an incumbent of Lower Division of the Subordinate Revenue Service who does not clear the examination is provided in Rule 6(2) and accordingly, the unsuccessful incumbent loses his seniority as provided in Rule 7 and he will not be eligible for promotion to the Upper Division. He will also be not eligible for confirmation. However, on passing examination, he would become eligible for confirmation and promotion to the higher post as provided under Rule 7. Under Rule 7, a person passing the examination beyond the prescribed period who became eligible for confirmation and promotion could under the earlier proviso to Rule 7 not claim seniority over those who had passed the examination earlier. However, after 20.5.1982, the proviso to Rule 7 was substituted and such late qualifier is now not entitled to claim seniority over those who had been promoted before he became eligible for promotion. Under Rule 9 of the LRQE Rules, a person passing the examination in the specified period and chances would retain his original seniority in the Upper Division even if his junior who had passed the examination was promoted earlier, to the higher post. From the wordings of Rule 9 it is clear that it would operate in context of the promotion to the higher post given earlier to a junior who had passed the examination within the prescribed chances prior to his seniors who have passed the examination later but within the prescribed chances. Under Rule 9(2), the inter-se seniority between seniors and juniors who have passed the examination within the prescribed chances is retained in the Upper Division. The post of Deputy Mamlatdars falls in the Upper Division. The said examination is ordinarily required to be held twice a year as provided in Rule 10. Rules 11 and 13 of the LRQE Rules have been deleted. Rule 19 of the LRQE protects the existing right of the candidates that may have accrued under the old Rules. For promotion to a higher post from the Subordinate Revenue Service, a person of Upper Division of that service is required to pass the HRQE examination under the said Rules of 1980. He is required to pass such examination after completion of three years' continuous service and within the period of three years from the date he is granted permission to appear at the HRQE for the first time in accordance with Rule 10. Under sub-rule (3) which was added to Rule 3 by the Amending Rules of 1988, every person of a Subordinate Revenue Service who has completed five years' continuous service after the date of passing the LRQE is also eligible to appear at the HRQE. Thus, after this amendment, persons who are in the Subordinate Revenue Service though they may not be in Upper Division of that service also become eligible to appear at the HRQE on completion of five years' continuous service after the date of passing the LRQE. Subordinate Revenue Service is defined in Rule