LPA/1241/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1241 of 2008 In SPECIAL CIVIL APPLICATION No. 10974 of 2008 With CIVIL APPLICATION No. 12509 of 2008 In LETTERS PATENT APPEAL No. 1241 of 2008 In SPECIAL CIVIL APPLICATION No. 10974 of 2008 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 civil judge ? ========================================================= PRATAPRAI RATILAL VYAS & 27 - Appellant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR MP PRAJAPATI for Appellant(s) : 1 - 28. MS TANUJA KACHHI, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 22/10/2008 LPA/1241/2008 2/9 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) The appellants - writ petitioners (28 in number) have preferred this Appeal under Clause 15 of the Letters Patent against the order dated 4th September, 2008 made by the learned Single Judge in above Special Civil Application No.10974 of 2008. The appellants are the retired employees or the heirs/successors of the retired employees of the State of Gujarat in its Land Records Department. The concerned employees were appointed in the Land Records Department of erstwhile State of Saurashtra during the period from 1949 to 1956. On reorganization of States as on 1st November, 1956, the State of Saurashtra was merged with the State of Bombay. The aforesaid employees of the State of Saurashtra came to be absorbed in the service of the State of Bombay. On reorganization of the State of Bombay with effect from 1st May, 1960, the said employees were allocated to the State of Gujarat. Upon reaching the age of superannuation, the said employees retired from service during the period from LPA/1241/2008 3/9 JUDGMENT 1980 to 1993. The said employees or their heirs/successors filed Special Civil Application No.1521 of 2000 under Article 226 of the Constitution for direction to the respondents to promote the said employees to the higher post in the then prevalent pay scale of Rs.425-700. At the relevant time, the said employees were denied the promotion as they had not passed the qualifying examination. According to the writ petitioners, as they were the employees of the erstwhile State of Saurashtra, they were not required to pass the qualifying examination as condition precedent for promotion. The denial of promotion at the relevant time was erroneous and illegal. The petitioners, therefore, prayed for deemed promotion from the date their juniors were promoted and for the consequential benefits. The said petition was dismissed by the learned Single Judge on 23rd March, 2006 on the grounds of delay and laches. Feeling aggrieved, the said petitioners preferred Letters Patent Appeal No.1376 of 2006. The said Appeal came to be allowed on 17th April, 2007 by the Division Bench (Coram: Mr. A.M.Kapadia and Mr. LPA/1241/2008 4/9 JUDGMENT K.A.Puj, JJ.). The Bench relied upon the judgment in Special Civil Application No.4151 of 1984. The Bench recorded the submission that, “the appellants were employees of the Ex State of Saurashtra under the provisions of the Bombay Re-Organization Act, 1960 and hence, conditions of service applicable before the appointed day in respect of the employees of the Ex State of Saurashtra allocated into the State of Gujarat cannot be varied to their disadvantage except with the approval of the Central Government.” In that view of the matter, the Bench was pleased to direct the respondent authorities “to consider the case of the appellants for promotion to the post carrying the pay scale at the relevant time with effect from the date on which their juniors were promoted.” Pursuant to the said order, the case of the concerned employees were examined by the respondent authorities. By orders dated 18th July, 2007 made in respect of the individual employee, it was held that the concerned employee had not passed the qualifying examination under the Land Records Qualifying Examination Rules. He, therefore, was not eligible for further promotion. LPA/1241/2008 5/9 JUDGMENT Feeling aggrieved, the appellants preferred above Special Civil Application No.1521 of 2000. The writ petition has been dismissed by the learned Single Judge as in the opinion of the learned Single Judge, the petition was in the nature of 'monetary claim' and was 'hopelessly time barred.' Feeling aggrieved, the appellants have preferred the present Appeal. We are in agreement with the learned Single Judge. The petition was indeed misconceived and the claim was hopelessly time barred. It may also be noted that out of 28 petitioners, as many as 15 were the heirs/successors of the deceased employees. Indisputably, the said employees never raised the demand for deemed promotion or consequential benefits at the relevant time; nor during their service; nor after their retirement. Right to promotion is a right in personam. If the concerned employee did not claim promotion, his heir LPA/1241/2008 6/9 JUDGMENT or successor had no authority or locus standi to claim such promotion. The claim made by the heirs/successors of such employees were untenable. Besides, as recorded hereinabove, all the employees had raised claim long after their retirement. The claims were around 40 years old. Such stale claims could not have been entertained. Further, it is not in dispute that the concerned employees had not passed the qualifying examination prescribed under the Land Records Qualifying Examination Rules. The only claim was that the concerned employees were appointed by the erstwhile State of Saurashtra; under the rules prevalent in the State of Saurashtra, they were not required to pass any qualifying examination as a condition precedent for further promotion. The said employees were, therefore, not obliged to pass the qualifying examination after their allocation to the State of Gujarat. We are afraid, the contention is baseless. The question is no more res-integra. The Hon'ble Supreme Court had, as far back as in the years 1974 and 1975, occasion to consider this very issue. In the matter LPA/1241/2008 7/9 JUDGMENT of J.K.Vasavada & Others V/s. Chandrakanta Chimanlal Bhavsar & Another [AIR 1975 SC 2089], the Hon'ble Supreme Court considered the provisions under the States Reorganization Act, 1956 and the Bombay Reorganization Act, 1960 and the Rules made thereunder. The Hon'ble Supreme Court held that “In respect of all Government servants who were allotted to he reorganized State of Bombay Section 115(7) of the States Reorganization Act applied. It was under the proviso to that section that the above mentioned circular of May 11, 1957 was issued by the Government of India. Under that circular it was open to the reorganized State of Bombay to make any rules for promotion of its servants which were not applicable to them before the formation of the reorganized State of Bombay. In other words the reorganized State of Bombay had the right to make rules regarding those Government servants including the parties in this case. The reorganized State of Bombay could have made rules making the G.D.C. & A. a necessary qualification for promotion even though there was no such rule earlier. Therefore the conditions of service of the servants of the reorganized State of LPA/1241/2008 8/9 JUDGMENT Bombay before 1st of May, 1960 included a condition that they would be subject to any rule made by that State in respect of their promotion. The power granted to the reorganized State of Bombay should be deemed to accrue to the successor States, that is, the States of Maharashtra and Gujarat.” Thus, irrespective of the service conditions prevalent in the then State of Saurashtra, after their allocation to the State of Gujarat, the conditions of service prescribed by the State of Gujarat would prevail. If the said conditions required passing of a qualifying examination as condition precedent for promotion, the said condition did apply to the employees of the erstwhile State of Saurashtra allocated to the State of Gujarat including the employees before us. As recorded hereinabove, Deputy Director of Land Records did examine individual cases. None of the employees before us had passed the qualifying examination. None of the said employees was eligible for promotion at the relevant time. The claim for deemed promotion made after around 40 years was not only hopelessly time barred but was misconceived on merits also. LPA/1241/2008 9/9 JUDGMENT In above view of the matter, the Appeal is dismissed in limine. Civil Application stands disposed of. [Ms. R.M.Doshit, J.] kdc [K.M.Thaker, J.]