IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7509 of 1990 with SPECIAL CIVIL APPLICATION No 5380 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ K K BARIA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 7509 of 1990 MR D C RAVAL for MR MR ANAND for Petitioner No. 1 MS. MANISHA LAVKUMAR, AGP for Respondent No. 1 NOTICE SERVED for Respondent No. 2 MR BIPIN I MEHTA for Respondent No. 3-6 2. Special Civil Application No. 5380 of 1991 MR D C RAVAL for MR MR ANAND for Petitioner No. 1 MS. MANISHA LAVKUMAR, AGP for Respondent No. 1 MR. H.S. MUNSHAW for respondent no.2. NOTICE SERVED for Respondent no.3. -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI Date of decision: 05/04/2002 ORAL JUDGEMENT Both these matters raise common questions and are, therefore, argued together by the learned Counsel appearing for the parties. 1. In Special Civil Application no.7509 of 1990, the petitioner challenges the order at Annexure "G" to the petition dated 11th September,1990 by which the order dated 10th September, 1990 promoting the petitioner to the post of Extension Officer (Cooperation) was held in abeyance. The petitioner was working as a Gram Sevak with the respondent-Panchayat. According to him, he was eligible under the rules to be promoted as Extension Officer. The posts of Extension Officers (Agriculture/Cooperation) were subject to the reservation policy of the State Government. The Social Welfare Department had written letter dated 2nd June, 1990 to the District Development Officer to fill up three posts of Extension Officers by promoting Scheduled Tribe candidates from the cadre of Gram Sevaks. Three posts were worked out by calculating all the vacancies filled up from 1976 onwards. The petitioner was a Scheduled Tribe candidate and was found to be eligible for promotion to the said post of Extension Officer (Cooperation). He was accordingly promoted on 10th September,1990. He was, however, not allowed to take over the charge though relieved from his earlier post on the ground that the order of his promotion was issued hurriedly. In the impugned order, however, there was no reason given for holding the promotion order in abeyance. 2. In the affidavit-in-reply filed by the respondent no.2-the District Development Officer in Spl.C.A. no.7509 of 1990, while admitting that the petitioner was promoted as Extension Officer as per the rules on 10th September, 1990 and was relieved to join the post, it is stated that because of telephonic instructions from the Deputy Secretary to the Government, the petitioner was not allowed to join in the promotional post. In the letter dated 11th September,1990 which was produced with the affidavit-in-reply at Annexure "A", it was mentioned that the promotion orders were issued in haste without awaiting the outcome of the implementation of the earlier circular dated 6-3-1980. It appears that the District Development Officer wrote a letter dated 22-10-1990 to the Government in the context of the promotional order having been kept in abeyance to issue final orders but no further action was taken. In the affidavit-in-reply of the respondent no.2, it was further stated in paragraph 2 that since there were three vacancies in the posts of Extension Officer, keeping in view the recruitment rules and roster, three eligible employees belonging to Scheduled Tribe were promoted as Extension Officers. It is then stated that by letter dated 6th March, 1980 instructions were issued that Senior Gram Sevaks were to be appointed to the post having higher pay scale. The respondent no.2 has fairly admitted in paragraph 3 that when roster points were to be taken into account, seniority in Gram Sevaks' cadre will not prevail while appointing a Scheduled Tribe candidate as per the roster. 3. In the rejoinder the petitioner has reiterated that as per instructions contained in the Government letter dated 2nd June, 1990, the posts earmarked for Scheduled Tribe candidates were required to be filled in and he was duly promoted as per the recruitment rules to the post of Extension Officer. 4. In Special Civil Application no.5380 of 1991 which raises similar challenge against the order reverting the petitioner from the promotional post of Extension Officer (Agriculture). The petitioner by order dated 10th September, 1990 was promoted as Extension Officer (Agriculture) but was thereafter reverted as Gram Sevak and simultaneously promoted as a Statistical Assistant. According to this petitioner also, he was promoted as Extension Officer (Agriculture) against the quota of Scheduled Tribe candidates. 5. In the affidavit-in-reply filed by the District Development Officer in this petition, it is stated that the petitioner was reverted due to administrative exigency from the post of Extension Officer (Agriculture) to his original post of Gram Sevak by an order dated 7th August,1991 and he was simultaneously promoted to the post of Statistical Assistant by another order passed on the same day. It is stated that one Shri S.S. Pandya who was senior to the petitioner as Gram Sevak has been appointed as Extension Officer (Agriculture) since 8th August,1991. It was pointed out that there was some anomaly between the payscales of the posts of Statistical Assistant and Extension Officer, the former being in the payscale of Rs.1320-2040 and the latter in the payscale of Rs.1400-2300. However, the anomaly was removed by the Government by its resolution dated 30th July, 1991 and the post of Statistical Assistant and Extension Officer (Agriculture) thereafter carried the same payscale of Rs.1400-2300. It is stated that on the basis of the directions given by the Gujarat State Civil Services Tribunal in Case no.15/1978, the Government had issued circular dated 6th March, 1980 directing that as far as the Senior Gram Sevaks are concerned, they should be promoted to the post of Extension Officer while the Junior Gram Sevaks should be promoted as Statistical Assistant so that there will not be any heart burning on the part of the Senior Gram Sevaks. It is stated that some representations were made to the District Development Officer, Gandhinagar, as well as to the State of Gujarat on behalf of senior Gram Sevaks and Statistical Assistants whereupon the State of Gujarat issued a letter dated 18th April, 1991 directing the D.D.O. to reconsider the promotion and posting of the petitioner as Extension Officer (Agriculture). The matter was accordingly reconsidered by the respondent no.2-District Development Officer and the petitioner was reverted by the order dated 7th August, 1991 and again by another order of even date , he was promoted as Statistical Assistant. It is on this basis that it was submitted that there was no financial loss caused to the petitioner. 6. It will be seen that the promotions of the petitioners of these two cases were in accordance with the rules which show that Gram Sevaks were eligible for promotion to the post of Extension Officer. The promotion orders in both these cases clearly show that there were carried forward vacancies in the quota reserved for Scheduled Tribe candidates and the appointments of these eligible promotees were against that quota since both of them were Scheduled Tribe candidates. Admittedly, these promotions were in accordance with rules. When their promotions were given against the posts reserved for Scheduled Tribe candidates there was no occasion to compare their seniority with the seniority of Gram Sevaks belonging to general category. Therefore, their promotions could not have been disturbed on the basis of the earlier circular dated 6th March, 1980 which had nothing to do with promotions given against the vacancies reserved for Scheduled Tribe candidates. 7. Apart from this aspect of the matter, admittedly, before denying the promotion under the orders passed in favour of the petitioners by, in one case keeping the order of promotion in abeyance, and in the other reverting the petitioner, no opportunity of being heard was given to them. Once promotion orders were issued, any action denying those promotions to the petitioners adversely affected their right to hold the post of promotion. It was therefore incumbent upon the authorities to give an opportunity of being heard to the petitioners before setting at naught their promotions which were given in accordance with the rules and as per the quota reserved for the Scheduled Tribe candidates. 8. The objections raised on behalf of the respondents nos.3 to 6 in Spl.C.A. no.7509 of 1990 who were in the cadre of Statistical Assistants against promotion of the petitioner to the post of Extension officer cannot be countenanced because the post of Statistical Assistant was not a source of promotion to the post of Extension Officer. In fact, after removal of anomaly of a difference of few rupees in the payscales, both the posts were in the identical scale. Therefore, the contention raised on behalf of the respondents nos.3 to 6 that they had a better right over the petitioner to be appointed as Extensions Officers because they were already working as Statistical Assistant has no basis. 9. In the above view of the matter, the impugned orders, namely, the order keeping the promotion of the petitioner of Spl.C.A. no.7509 of 1991 as Extention Officer in abeyance and the order made in Spl.C.A. no.5380 of 1991 reverting the petitioner from the post of Extension Officer as Gram Sevak, are illegal and cannot be sustained. The impugned orders are, therefore, set aside with a direction to the respondents to restore the position of the petitioners of both these petitions on the basis of their initial promotion orders dated 10-9-1980 with all consequential benefits. Rule is made absolute in each of these petitions with no orders as to costs. (R.K. Abichandani,J.) stanley-rka.