IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5940 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- HB THAKKAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5940 of 1999 MR PARESH UPADHYAY for Petitioner No. 1 MR N.D.GOHIL, AGP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE H.K.RATHOD Date of decision: 17/09/2003 ORAL JUDGEMENT Heard learned advocate Mr. Paresh Upadhyay for petitioner and learned AGP Mr. N.D.Gohil appearing on behalf of respondent. 2. At the time of hearing Mr. I.S.Parmar, Section Officer from the respondent Department is also remained present to assist learned AGP Mr. N.D.Gohil. The brief facts of the present petition are as under. 2.1 According to the petitioner he was appointed as Accounts Officer Class-I as direct recruit on 1.1.1968 and, on the same day, one Mr. J.M.Gor was also appointed as Accounts Officer Class-II along with the petitioner. On 16.1.1985, Government has published seniority list wherein petitioner was shown junior to Shri Gor against which the petitioner had grievance. Thereafter, petitioner was promoted on the post of Deputy Director along with Shri Gor keeping the dispute regarding seniority of the petitioner vis-a-vis Shri Gor, as it is. On 16.7.1987 Shri Gor was promoted as Joint Director ignoring the claim of the petitioner and, thereafter, on 16.10.1989, the petitioner was promoted as Joint Director and on 12.3.1990 Shri Gor was promoted as Director. According to the petitioner, the dispute and difference in respect to the seniority between the petitioner and Mr. Gor in the cadre of Accounts Officer Class-I was decided and accepted by the State Government. On 29.5.1992 Government has published provisional seniority list of Accounts Officer Class-I wherein the petitioner was shown senior to Mr. Gor. On 27.9.1994 the above list was finalised as it is, that is, the petitioner was finally declared senior to Mr. Gor as Accounts Officer Class-I. According to the petitioner, when Mr. Gor was promoted on the post of Joint Director on 16.7.1987, for that, a representation was made by the petitioner with a prayer to grant deemed date of promotion in the cadre of Joint Director w.e.f. 16.7.1987 and deemed date on the post of Director w.e.f. 12.3.1990 when Mr. Gor was promoted on the post of Director. The said request of the petitioner was not accepted by the department and ultimately, Special Civil Application No. 5663 of 1995 was filed by the petitioner before this Court. During the pendency of the said Special Civil Application, on 12.9.1995 the State Government had accepted the claim of the petitioner regarding deemed date of promotion for the post of Joint Director and passed an order granting the said benefit notionally to the petitioner w.e.f. 16.7.1987 and thereafter on 18.3.1996 the said Special Civil Application was finally decided by this Court and partly allowed while granting the actual benefit of the deemed date of promotion in the cadre of Joint Director w.e.f. 16.7.1987 and even arrears of pay was ordered to be paid and, thereafter, question of granting the deemed date on the post of Director has been left open for the Government. Thereafter, the Letters Patent Appeal was filed in respect with respect to the latter part of the judgement being L.P.A. No. 744 of 1996. In L.P.A. the Division Bench of this Court has made it clear that for getting the deemed date of promotion petitioner can take appropriate steps in accordance with law. Thereafter, on 26.7.1996 the petitioner was promoted as Director but the claim of the petitioner for deemed date w.e.f. 12.3.1990 on the post of Director has been rejected by the State Government on 19.8.1996. On 9.7.1999 the L.P.A. came to be disposed of by the Division Bench keeping open the right of the petitioner to challenge the denial of the Government regarding the deemed date of promotion on the post of Director. 3. Affidavit-in-reply has been filed by one Mr. Hasmukhbhai R. Patel, Deputy Secretary, Finance Department against the present petition. Three contentions have been raised by the respondent in the affidavit-in-reply. First is that, in 1985 seniority list, the petitioner was junior in comparison to Mr. Gor and when Mr. Gor was promoted, the principle of selectivity was taken into account and therefore, considering Mr. Gor being senior, the case of the petitioner was not considered by the department. A detailed affidavit-in-reply including the contention of delay in challenging the action of the department was also raised by the respondent. The relevant averments made in the reply relates to the facts of this case are narrated at page 56. According to the respondent, out of five seniormost officers as per seniority list dated 16.1.1985 whose performance was assessed, one Mr. J.M.Gor was recommended by the Departmental Promotion Committee (top level) in their meeting held on 15.1.1990. Accordingly, Mr. Gor was promoted to the post of Director w.e.f. 12.3.1990. It is also made clear by the respondent in further averments that seniority of Accounts Officer Class-I and Class-II which was fixed as per the directives of the Court and persons who were in service as on 31.12.1964 and who had completed five years service as on that date were to be considered for initial composition and, on that basis, the seniority list of 16.1.1985 was prepared by the department. Due to these persons from Class-II who had completed 5 years were considered and thereby Class-II officers were appointed as Class-II in 1968 (Mr. Gor was one of them) were getting seniority over Class-I direct recruitee (the petitioner was one of them). So far as seniority list dated 16.1.1985 is concerned, the petitioner was shown at S.No. 41 and the person who was stated to have promoted earlier (Mr. Gor) on the post of Joint Director and Director was at S.No.31. Therefore,it was made further clear by the respondent that his consideration was on account of his zone of consideration top among all the five considered for promotion as on 15.1.1990. The further averment made that the action taken by the respondent for determining the issue of promotion in light of the seniority list dated 16.1.1985 which was in force as on March' 1990 and by application of principle of selectivity while considering the promotion to Shri Gor was in order. The further averment is also made that the Departmental Promotion Committee met for the said purpose on 25.3.1992 for selection to the post of Director, suggested to adopt the new seniority list of Accounts cadre which was to be published in place of the then seniority list dated 16.1.1985. The Committee further recommended to make a fresh selection of an officer for the another post of Director (Director of Pension and Provident Fund) in place of an officer earlier selected on the basis of seniority list dated 16.1.1985 and in light of the seniority list which was to be published after the provisional seniority list which was published on 29.5.1992. The Departmental Promotion Committee again held their meeting to consider selection two posts of Heard of Department, eight names were required to be considered for selection of the above two posts, as per instructions issued by the Government. The name of the petitioner was also included in the said name and the Committee had considered all the eight names of the seniormost officers of the level of Joint Director (Accounts cadre) from the then newly published seniority list dated 29.5.1992 (the list in which the petitioner became senior to Mr. Gor). All the eight were considered for inclusion and performance were assessed and the Committee in their minutes dated 18.4.1994 has specifically noted that the Committee had assessed the overall performance of the said eight officers and categorized them in light of the instructions contained in the Government Resolution, General Administration Department dated 20.5.1978 (instructing the Secretariat Departments to follow the principle of selectivity) and, keeping in view the selection criteria for such posts, the Committee had recommended the following two names for their inclusion in the panel for promotions to the post of two Director: (i) Mr. G.M.Gor (selected earlier in light of earlier seniority list reconsidered again in light of the new seniority list as per the suggestion of the D.P.C.) (ii) Mr. S.U.Jani Thus, out of two, the post of Director of Pension and Provident Fund filled on 12.3.1990 was again taken up for reconsideration according to the new seniority list dated 29.5.1992 wherein the petitioner was shown senior to Mr. Gor. According to the respondent that D.P.C. has not found fit the petitioner for the post of Director when the Committee was met on 18.4.1994. According to the respondent petitioner is not having any vested right of promotion and his case was fully considered giving due weightage to his seniority and also considering the principle of selectivity it was prevailing since long and therefore, the contention which was raised by the petitioner against the seniority list dated 16.1.1985 is not correct. 4. The averments made in para 5 of the reply are relevant and important. The prayer of the petitioner for deemed date of promotion for the post of Joint Director and thereafter for the post of Director w.e.f. 12.3.1990 has been considered by the respondent department. The answer given by the respondent in reply is that considering the first demand during the pendency of the petition the Government has accepted the claim of deemed date of promotion to the post of Joint Director and orders were issued on 12.9.1995 giving the benefit. However, as regards the second demand for deemed date of promotion for the post of Director, the respondent has relied upon the observations made by this Court in earlier petition filed by the petitioner. This Court has considered that in respect of the criteria to be adopted for deemed date of promotion to the post of Director which is considered to be a premature and matter has been left to the Government. Then, petitioner had filed L.P.A. No. 744 of 1996 which ultimately the Division Bench of this Court has kept open the right of the petitioner to challenge the grievance against the deemed date for the post of Director w.e.f. 12.3.1990. The defence which has been taken by the respondent about that selectivity criteria which is not incorporated in the rules, the answer given by the department is that it is not necessary to insert said principles in the statutory rules. Therefore, according to the respondent, in light of the general instructions to all the Secretariat Department, the said circular dated 20.5.1978 is binding to all the respective departments. 5. Learned advocate Mr. Paresh Upadhyay appearing on behalf of the petitioner has submitted that once the department has accepted the seniority of the petitioner and given deemed date w.e.f. 16.7.1987 by order dated 12.9.1995 and the petitioner has been considered to be senior to Mr. Gaur, in light of this order or considering being a base, petitioner is entitled deemed date in the cadre of Director w.e.f. 12.3.1990. At that time when Mr. Gor was promoted the case of the petitioner was not considered by the Departmental Promotion Committee because at the relevant time the seniority list of 16.1.1985 was only taken into account and from that list only five senior officers were considered by the Departmental Promotion Committee in which the petitioner was not considered as he was not come within the five officers those who are senior, has been considered by the Department Promotion Committee because in the seniority list of 16.1.1985 petitioner was at S.No.41 and Mr. Gor was at S.No.31. Therefore, Mr. Paresh Upadhyay has submitted that the principle of selectivity which has been relied by the department on the basis of the Government Circular dated 20.5.1978 is contrary to the statutory rules and statutory rules of the year 1961 only fixed the criteria of proved merits and efficiency, except that no other criteria has been fixed under the statutory rules. He also submitted that any administrative instructions or directions contrary to the statutory rules having no legal effect and same cannot be implemented against the statutory rules. Mr. Paresh Upadhyay has further submitted the principle of selectivity has been incorporated by way of notification dated 6.1.1994 where the principle of selectivity for the post of Director has been considered. Therefore, before 6.1.1994 the promotion was given to Mr. Gor w.e.f. 12.3.1990 on the basis of the decision of the Departmental Promotion Committee which was met on 15.1.1990. Therefore, according to him petitioner is entitled the deemed date in the cadre of Director w.e.f. 12.3.1990 when Mr. Gor was promoted on the post of Director. 6. Learned AGP Mr. N.D.Gohil with the assistance of Mr. I.S.Parmar, Section Officer has emphasized that petitioner is not entitled the deemed date w.e.f. 12.3.1990 because at the relevant time the Departmental Promotion Committee has considered the seniority list of 16.1.1985 wherein the petitioner was not senior to Mr. Gor, therefore, he was not considered by the Departmental Promotion Committee met on 15.1.1990. Learned AGP Mr. Gohil has also further submitted that on 18.4.1994 again the Departmental Promotion Committee was met wherein the case of the petitioner was considered but according to the Committee he was not found fit for the promotion. Therefore, according to the learned AGP Mr. Gohil, the principle of selectivity, based on Government Resolution dated 20.5.1978 has been rightly applied while selecting Mr. Gor on the post of Director and promotion was rightly given to Mr. Gor on 12.3.1990 when petitioner was junior according to the seniority list dated 16.1.1985. Therefore, learned AGP Mr. Gohil has submitted that petitioner is not entitled the deemed date w.e.f. 12.3.1990 though his case was considered for deemed date for the post of Joint Director by order dated 12.9.1995. According to his submissions petition is required to be dismissed. 7. I have considered the submissions made by both the learned advocates. It is necessary to note one important aspect that how this situation has occurred between the petitioner and Mr. Gor. It is necessary to note that petitioner was appointed as a direct recruitee on the post of Accounts Officer Class-I on 1.1.1968 and on the same date Mr. Gor was also appointed as Accounts Officer Class-II along with the petitioner. From the date of joining or appointment of petitioner and Mr. Gor, petitioner was appointed in Class-I and Mr. Gor was appointed in Class-II, then how Mr. Gor has been treated and considered throughout even more than 20 years being senior to the petitioner. The grievance has been raised by the petitioner all throughout against the seniority list of 16.1.1985 where the petitioner has been shown at S.No.41 and Mr. Gor has been shown at S.No.31. It is also necessary to note one important aspect that from 1.1.1968 to 16.1.1985 no promotion was given either to the petitioner or to Mr. Gor but both were promoted on 16.1.1985 to the post of Deputy Director. Even considering this situation as it is, how Mr. Gor become senior in the seniority list of 16.1.1985 in comparison to the petitioner, is still not explained by the respondent in their affidavit. In the entire affidavit no averments have been made by the respondent as to on what basis and considering which criteria Mr. Gor has become senior to the petitioner because both were appointed initially on different cadre, that is, one on Class-I and the other on Class-II which was the feeder cadre. Therefore, the entire exercise has been carried out by the respondent department relying upon the seniority list dated 16.1.1985 where Mr. Gor was considered senior to the petitioner and Departmental Promotion Committee which met on 15.1.1990 selected Mr. Gor for the post of Director. At that occasion the petitioner was not at all considered and his case was not examined by the Departmental Promotion Committee. But, looking to the subsequent development which was accepted by the respondent department by issuing order dated 12.9.1995 Mr. Gor was considered to be junior to the petitioner and on that basis deemed date on the post of Joint Director has been given to the petitioner w.e.f. 16.7.1987 instead of 16.10.1989. In the year 1990 when Departmental Promotion Committee was met on 15.1.1990, as per the reply submitted by the respondent, the case of Mr. Gor was considered on the basis of the seniority list dated 16.1.1985 but the case of the petitioner was not considered. At the relevant time recruitment rules and notification dated 30.12.1964 were in operation. The relevant provisions for the post of Gujarat Accounts Service Class -I (Senior Duty Posts) and Gujarat Accounts Service Class-I (Junior Duty Posts) are quoted as under: "(A) Gujarat Accounts Service Class (Senior Duty Posts):- Appointment is Gujarat Accounts Services Class-I (Senior Duty Posts) shall be made by promotion of officers of proved merit and efficiency who have worked for not less than three years in Gujarat Accounts Service, Class-I (Junior Duty Posts) or in a corresponding post. (B) Gujarat Accounts Service Class-I (Junior Duty Posts):- 1. Appointment to Gujarat Accounts Service, Class-I (Junior Duty Posts) shall be made either:- (i) By promotion of officers of proved merit and efficiency who have worked for not less than 3 years in Gujarat Accounts Service Class-II or in a corresponding post, and have passed such department examination as may be prescribed by Government. (ii) By nomination in the ratio of all respectively. (C) For being eligible for appointment by nomination the candidate must; a) be not less than 25 years and unless already in the service of the Government, be not more than 35 years of age. Provided that the upper age limit may be relaxed in favour of a candidate with exceptionally good qualification and/or experience. b) be a Chartered or Associate Chartered or incorporated or registered accounts and possess a degree in Arts, Science, Commerce or law at least in the commerce will be given preference, and; c) possess atleast three years experience in Accounts and auditing in a responsible capacity in a commercial organisation or corporation or Board or a Government department. Note: For the purposes of A and B above, the Government will in consultation with the commission decide which posts will be corresponding to the posts of Gujarat Accounts Service, Class-I (Junior Duty) and Gujarat Accounts Service Class-II respectively." 8. In view of the above statutory rules under Article 309 of the Constitution of India, the consideration was only of officers of proved merit and efficiency who have worked for not less than three years which is clear from the notification. The principle of selectivity was not included in the said rules. Thereafter, by another notification dated 6.1.1994, in Rule 5 for Class-A, the following has been substituted which is as under: "(A) Gujarat Accounts Service, Class-I (Senior Duty Posts) (i) Appointment to Gujarat Accounts service Class-I (Senior Duty Posts) mentioned under Category-C of Annexre-II appended to these rules shall be made by promotion of a person of proved merit and efficiency from amongst the persons working under Gujarat Accounts Service Class-I (Junior Duty Posts) and who have worked for not less than five years as such: Provided that where the appointing authority is satisfied that a person having the experience specified above is not available for promotion and that it is necessary in the public interest to fill up a post by promotion even if a person having experience for a lesser period, it may, for reasons to be recorded in writing, promote such person who possess experience if a period of not less than two thirds of the period specified above. (ii) Appointment to Gujarat Accounts Service, Class-I (Senior Duty Post) mentioned under Category-B of Annexure-II appended to these rules shall be made by promotion of a person of proved merit and efficiency, from amongst the persons working under Gujarat Accounts Service Class-I (Senior Duty Posts) mentioned under Category-C of Annexure-II appended to these rules, and who have worked for not less then five years as such: Provided that where the appointing authority is satisfied that a person having the experience specified above is not available for promotion and that it is necessary in the public interest to find up a post by promotion even if a person having experience for a lesser period, it may, for reasons to be recorded in writing promote such persons who possesses experience of a period of not less than two thirds of the period specified above. (iii) Appointment to Gujarat Accounts Service, Class-I (Senior Duty Posts) mentioned under Category-A of Annexure-II appended to these rules, shall be made by promotion on units of principles of selectivity within the zone of consideration irrespective of seniority from amongst the persons working under category-B Gujarat Accounts Service Class-I (Senior Duty Posts) and who have worked for not less than three years as such: Provided that where the appointing authority is satisfied that a person having experience specified above is not liable for promotion and that it is necessary in the public interest to fill up a post by promotion even if a person having experience for a lesser period, it may, for reasons to be recorded in writing promote such persons who possesses experience of a period of not less than two thirds of the period specified above. In the said rules, for Annexure-II (A), the following shall be substituted, namely:- Annexure-II (See Rule 3) (A) Gujarat Accounts Service Class-I (Senior Duty Posts) Category-A 1. Director Category-B 1. Examiner 2. Joint Director Category-C 1. Deputy Director 2. Deputy Examiner 3. Senior Treasury Officer 4. Pay and Accounts Officers In the said notification dated 6.1.1994 wherein by Item No.(iii) states that appointment to Gujarat Accounts Service, Class-I (Senior Duty Post) mentioned under Category-A of Annexure-II appended to these rules, shall be made by promotion on units of principles of selectivity within the zone of consideration irrespective of seniority from amongst the persons working under Category-B Gujarat Accounts Service, Class-I (Senior Duty Posts) and who have worked for not less than three years as such. Therefore, it is very clear that prior to 1994 principle of selectivity for the post of Director was not in existence at all. The reliance which has been placed by the respondent relying upon the Government Circular dated 20.5.1978 where the principle of selectivity was required to be taken into account while giving promotion on the post of Director or Head of Department, is contrary to the statutory rules framed under Article 309 of the Constitution of India, meaning thereby that it was contrary to notification dated 30.12.1964. When Departmental Promotion Committee was met on 15.1.1990 relying upon the seniority list of 16.1.1985, this amended notification dated 6.1.1994 was not in existence and therefore to rely upon the principle of selectivity for selection to the post of Director is contrary to the statutory rules. Therefore, respondent has adopted the procedure or method for selection to the post of Director applying the principle of selectivity which is contrary to the service rules framed under Article 309 of the Constitution of India. Therefore, the contention which has been raised by the respondent in reply relying upon the Government Resolution dated 20.5.1978 cannot be accepted in light of the statutory rules framed by the Government under article 309 of the Constitution of India notification dated 30.12.1964. 9. The respondent has raised contentions in reply that there is delay in challenging the action of respondent by the petitioner. At the time of considering the case of Mr. Gor, the respondent has followed Government circular