SCA/6437/1999 1/48 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6437 of 1999 with SPECIAL CIVIL APPLICATION No. 7844 of 1999 with SPECIAL CIVIL APPLICATION No. 8022 of 1999 with CIVIL APPLICATION No. 6167 of 2000 with CIVIL APPLICATION No. 6437 of 2000 with SPECIAL CIVIL APPLICATION Nos. 2955 to 2973 of 2002 with SPECIAL CIVIL APPLICATION No. 200 of 2002 with SPECIAL CIVIL APPLICATION No. 17164 of 2004 with CIVIL APPLICATION Nos. 1373 & 1374 of 2005 with CIVIL APPLICATION No. 8378 of 2003 with MISC. CIVIL APPLICATION NO.2272 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ============================================================== 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 ? ============================================================== NISHITH DHRUVA & 2 - Petitioner(s) Versus GUJARAT PUBLIC SERVICE COMMISSION & 1 - Respondent(s) ============================================================== Appearance : 1. SCA No.6437 of 1999 MR PARESH UPADHYAY for Petitioner(s) : 1, MR SK PATEL/ MR HJ TRIVEDI for Respondent. SCA/6437/1999 2/48 JUDGMENT 2. SCA Nos.7844 & 8022 of 1999 & SCA Nos.2955 to 2937 of 2002 MR NK MAJMUDAR for the Petitioners. MR SK PATEL/ MR HJ TRIVEDI for Respondent No.1 MR PARESH UPADHYAY for Respondent, MR LB DABHI, AGP for State. 3. SCA No.200 of 2000 & SCA No.17164 of 2004 MR PR NANAVATI for the Petitioner MR SK PATEL/ MR HJ TRIVEDI for Respondent No.1 4. CA Nos. 6167 & 6437 of 2000 MR PARESH UPADHYAY for Applicant MR NK MAJMUDAR for Original Petitioner. MR SK PATEL/ MR HJ TRIVEDI for Original Respondent. 5. CA Nos.1373 & 1374 of 2005 MR SK PATEL/ MR HJ TRIVEDI for Original Applicant. MR NK MAJMUDAR for Original Petitioners. 6. CA No.8378 of 2003 MR NK MAJMUDAR for Original Applicant. 7. MCA No.2272 of 2003 MR SK PATEL/ MR HJ TRIVEDI for Original Applicant. ================================================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 12/12/2005 COMMON ORAL JUDGMENT 1. Since all these Special Civil Application and Civil Applications are inter connected and SCA/6437/1999 3/48 JUDGMENT issues raised therein are common, they are being heard together and are being disposed of by this common order and judgment. 2. Special Civil Application No.6437 of 1999 is filed by one Nishith M. Dhruva, praying for the direction to the respondent i.e. Gujarat Public Service Commission to recast the final seniority list dated 24.8.1999, excluding the names of the persons shown at Serial Nos.13, 14, 17, 23, 24, 30, 31, 33, 34, 35 and 53, who did not belong to the cadre of Assistant in the establishment of respondent commission. 3. Special Civil Application No.7844 of 1999 is filed by in all 16 persons praying for quashing and setting aside the final seniority list published on 24.8.1999 for the cadre of Assistant by respondent authorities. The petitioners have also sought for the direction to hear the petitioners and to prepare the SCA/6437/1999 4/48 JUDGMENT final seniority list afresh. 4. Special Civil Application No.8022 of 1999 is filed by in all 20 petitioners praying for the similar relief of quashing and setting aside the seniority list dated 24.8.1999 in so far as the said seniority list affects the rank and position of the petitioners. They have also sought for the declaration from this Court to the effect that the final seniority list of Assistants dated 4.5.1985 was required to be confirmed and should not have been changed by the commission. Further relief was also sought to the effect that the commission should not be allowed to act upon the said seniority list dated 24.8.1999 and it should act upon the final seniority list as Assistants dated 4.5.1985. 5. Since Special Civil Application No.8422 of 1999 was admitted by the Court and stay against SCA/6437/1999 5/48 JUDGMENT the operation of the seniority list of 1999 was granted. Mr.Nishith M. Dhruva has moved Civil Application No.6167 of 2000 in Special Civil Application No.8022 of 1999 praying for vacating the ex-parte ad-interim stay granted by this Court on 19.4.2000. 6. Similarly, the said Mr.Dhruva, the petitioner of Special Civil Application No.6437 of 1999 also moved Civil Application No.6265 of 2000 praying for the similar relief of vacating the ex-parte ad-interim stay granted by this Court on 11.10.1999 in Special Civil Application No.7844 of 1999. 7. Special Civil Application No.200 of 2000 is filed by one Mr.Harshad Pratap Pathak, praying for quashing and setting aside the seniority list of Section Officers dated 4.5.1985 and the seniority list of Section Officers dated 25.10.1996, who are proposed to SCA/6437/1999 6/48 JUDGMENT be promoted as Deputy Secretary on 31.12.2001 and further praying for the direction to the respondents concerned not to give effect of promotion from the post of Section Officer to Deputy Secretary, till petitioner is promoted to the post of Section Officer ahead of Mr.C.R.Vyas, in the seniority list and further selecting him in the post of Deputy Secretary that is contemplated by respondents with effect from 31.12.2001. The petitioner further prayed for the direction to the respondents to immediately promote the petitioner to the post of Section Officer from his present post of Assistant as per the deemed date vide order dated 30.8.2001, as he is senior most in the list of Assistants as on 5.2.1990 on which date his junior Mr.C.R.Vyas was promoted and sought for the further direction to the respondents to consider the petitioner to be promoted to the post of Deputy (Under) Secretary with effect from 31.12.2001. SCA/6437/1999 7/48 JUDGMENT 8. Special Civil Application No.2955 to 2973 of 2002 are filed by the petitioners who are already the petitioners in Special Civil Application No.7844 of 1999 and/or Special Civil Application No.8022 of 1999. These petitions are one page petitions. They are filed pursuant to the direction of this Court to file separate petitions. The relief prayed for in these petitions is same as was prayed for in Special Civil Application No.7844 of 1999 as well as Special Civil Application No.8022 of 1999. 9. Special Civil Application No.17164 of 2004 is filed by Mr.Harshad Pratap Pathak, who is the petitioner in Special Civil Application No.200 of 2002 and prayed for the direction to respondent authorities to promote the petitioner on the post of Deputy Secretary ahead of respondent No.4 – Mr.C.R.Vyas SCA/6437/1999 8/48 JUDGMENT considering the higher placement of the petitioner in seniority list of the year 1999 and in light of the deemed date granted to the petitioner as well as the guidelines prescribed in Government Resolution dated 18.5.1999 and 16.11.1989. 10. Civil Application Nos.1373 and 1374 of 2005 are filed by Gujarat Public Service Commission in Special Civil Application No.8022 of 1999 and Special Civil Application No.7844 of 1999 respectively seeking permission from this Court to fill up the post of Section Officers by operating Seniority list of Deputy Section Officers dated 24.8.1999. 11. Civil Application No.8378 of 2003 is filed by one Smt.Ritaben Bhupendrabhai Dave -original petitioner No.8 in Special Civil Application No.8022 of 1999 seeking direction to the respondent authorities to comply with SCA/6437/1999 9/48 JUDGMENT the interim order dated 18.9.2003 passed in the Civil Application No.5086 of 2003 directing the Gujarat Public Service Commission to fill up all the 7 posts of Section Officer and seeking further direction to Gujarat Public Service Commission to consider the case of the present applicant for promotion to the post of Section Officer, as per the order dated 18.9.2003 passed by this Court. 12. M.C.A. No.2272 of 2003 is filed by the GPSC seeking modification in the order passed by this Court in Civil Application No.5086 of 2003 in S.C.A. No.7844 of 1999 dated 18.9.2003 to the effect that instead of seven posts of Section Officer, Class-II six posts of Section Officer, Class-II are required to be filled up by the applicant to the aforesaid extent. 13.So far as Special Civil Application Nos.7844, 8022 of 1999 and Special Civil Application SCA/6437/1999 10/48 JUDGMENT Nos.2955 to 2973 of 2002 are concerned, there is a common challenge to the final seniority list dated 24.8.1999. Mr.Nirav K. Majmudar, learned advocate appeared on behalf of all the petitioners in these petitions. It is the case of the petitioners that the seniority list of Assistants working in the office of the respondent commission, from Serial Nos.1 to 65 was finalised on 4.5.1985, as per the government orders and the ratio prescribed by the Recruitment Rules. The said list was not challenged nor was a subject matter of any proceeding and was fully acted upon from 1985 to 1997 and some of the petitioners not only earned promotions once but twice to higher posts as can be seen from the materials produced on record. On 17.12.1997, a provisional seniority list of Assistants working from Serial Nos.66 to 125 as on 1.1.1995 was published. However, most of the petitioners were not required to file their SCA/6437/1999 11/48 JUDGMENT objections as their rank was already finalised under the seniority list dated 4.5.1985. One Mr.N.M.Dhruva filed a petition being S.C.A. No.10548 of 1998, joining only the GPSC as party and obtained direction from this Court on 26.2.1999 to finalise the said list i.e., provisional list of 17.12.1997. On 13.4.1999, another provisional list of all Assistants working in the commission was issued on the assumption that there was such a direction to revise the earlier list and the petitioners were pushed down and the direct recruits were pushed up. On 24.8.1999, final seniority list was published on the basis of the objections raised by some persons and without giving due notice to the petitioners. Challenging the said seniority list, Special Civil Application No.7844 of 1999 was filed by Mr.S.A.Shaikh and 15 others and obtained interim order. Thereafter, on 11.10.1999 Special Civil Application No.8022 of 1999 was filed by one SCA/6437/1999 12/48 JUDGMENT Mr.C.B.Kapadia and 19 others. This petition was admitted on 19.4.2000 and there was an order to file one page separate petition for each of the petitioners. Accordingly, Special Civil Application Nos.2955 to 2973 of 2002 was filed in April, 2002. 14. During the pendency of these petitions, some of the petitioners, namely, Mr.C.B.Kapadia, Mr.C.R.Bihola, Mr.N.R.Pandya, Mr.M.H.Rasalawala and Smt.R.B.Dave, have retired from service and they were, therefore, not interested in prosecuting the respective petitions. So far as remaining petitioners are concerned, Mr.Majmudar has raised following contentions :- (i) there was no challenge to the seniority list dated 4.5.1985 from 1985 to 1997. (ii) there was no direction to disturb the seniority already finalised and acted upon by the Government or by this Court in its order SCA/6437/1999 13/48 JUDGMENT dated 26.2.1999 passed in Special Civil Application No.10548 of 1998. (iii) the said list of 1985 was not only acted upon but some of them were promoted to the higher posts. (iv) the statements made in the provisional list of 13.4.1999 and in the final seniority list of 24.8.1999 are not consistent with the rules of Assistants prevalent in the State and/or otherwise are made illegally and in breach of the principles of natural justice. 15. Further contention was raised that the said seniority list dated 24.8.1999 fixing the seniority of Assistants is against the Government Resolutions issued from time to time in the matter of fixation of seniority in the cadre of Assistants and against the principles fully recognised by the Apex Court that the direct recruits cannot be pushed up so as to get the seniority from the dates other than the SCA/6437/1999 14/48 JUDGMENT dates of actual appointment as direct recruits in that cadre. The said final seniority list was prepared without taking into consideration the objections raised by some of the petitioners in the representations. It is, therefore, contended that the said seniority list is illegal and improper and also unreasonable. It is further contended that the said seniority list is otherwise illegal in as much as the respondent No.1 Board has recalculated the number of posts of Assistants from 1.5.1960 and, therefore, the petitioners whose seniority ranks were finalised in 1985 even though they were regularly promoted were entitled to the benefit of continuous officiation in the post of Assistants and on promotional post and even though no details were given as to how the earlier calculation of number of posts was defective and why such an exercise was required to be undertaken by the commission after lapse of about 14 years and, SCA/6437/1999 15/48 JUDGMENT therefore, the petitioners would face adverse consequences if the said seniority was now allowed to be operated so as to nullify the final seniority list of 1985. 16. In the aforesaid petition, since an exparte ad-interim relief was granted by this Court against the operation of seniority list of 1999, the person affected by the said order, namely, Mr. Nishith M. Dhruva, has filed Civil Application No.6167 of 2000 for joining as party in Special Civil Application No.8022 of 1999. The said application was granted by this Court and said applicant was allowed to be joined as party. Thereafter, the said Mr.Dhruva had filed another Civil Application No.6265 of 2000 praying for vacating ad-interim relief granted in Special Civil Application No.7844 of 1999. The said application was ordered to be heard alongwith the main petition. SCA/6437/1999 16/48 JUDGMENT 17. Mr.Paresh Upadhyay, learned advocate appearing for Mr.Dhruva has raised several contentions opposing to grant any of the prayers made by the petitioners of Special Civil Application No.7844 of 1999 and 8022 of 1999. He has given the entire background leading to present controversy. He has submitted that in the office of the Gujarat Public Service Commission, seniority list for the cadre of Assistants (Deputy Section Officers) was not finalised for about 14 years and, therefore, applicant has filed petition being Special Civil Application No.10548 of 1998 wherein this Court has passed an order on 26.2.1999 directing the respondent commission to prepare and publish final seniority list of the Assistants within a period of six months. Pursuant to the said order the authorities of the Gujarat Public Service Commission, published the provisional list on 13.4.1999 SCA/6437/1999 17/48 JUDGMENT and invited objections. After considering the objections raised, on 24.8.1999 a final seniority list was published by the office of Gujarat Public Service Commission and this seniority list is the subject matter of challenge in Special Civil Application No.7844 of 1999 and Special Civil Application No.8022 of 1999. He has further submitted that the grievance of Mr.Dhruva was substantially redressed by the said seniority list of 24.8.1999. Only exception was that about 11 persons who were not in the establishment of Gujarat Public Service Commission were wrongly shown in the said seniority list. He has, therefore, filed Special Civil Application No.6437 of 1999, which was admitted and is also heard alongwith this group. 18. Mr.Upadhyay has further submitted that in the office of the Gujarat Public Service Commission, the employees working in the cadre SCA/6437/1999 18/48 JUDGMENT of Assistants by way of promotion were in majority and they were in charge of the establishment branch of the office all through out. He has further submitted that as soon as the seniority list was finally published in the month of August, 1999, a submission was made from the concerned branch that the final seniority list may be implemented, however, the concerned Joint Secretary had given an order in writing to the effect that the said exercise may be deferred for about two months. He has further submitted that by this time, all employees working in the office of the Gujarat Public Service Commission, whose status in the cadre of Assistants were of promotees, including the person who gave orders to defer the implementation of the seniority list, formed a group and filed two different Special Civil Application No.7844 of 1999 and Special Civil Application No.8022 of 1999. These two petitions were filed in the month of October, SCA/6437/1999 19/48 JUDGMENT 1999, and out of these two petitions, Special Civil Application No.7844 of 1999 was circulated for hearing on 11.10.1999 and an ex- parte ad-interim order was passed by this Court. He has further submitted that the said order has never been confirmed after hearing either Gujarat Public Service Commission or even other respondents. 19. Mr.Upadhyay further submitted that though the seniority list finally published by the authorities of Gujarat Public Service Commission was ex-parte stayed by this Court as back as on 11.10.1999, the authorities of Gujarat Public Service Commission have neither cared to file affidavit in reply in the said petition nor have they chosen to file any Civil Application for vacation / modification of the stay order granted by this Court on 11.10.1999 for quite some time. He has further submitted that the only reason that can be presumed is SCA/6437/1999 20/48 JUDGMENT that the persons who have to take decision in the establishment channel of the Gujarat Public Service Commission were themselves petitioners before this Court and they were enjoying the stay order granted by this Court. He has further submitted that one of the petitioners, namely, Mr.C.B.Kapadia, in Special Civil Application No.8022 of 1999 was Joint Secretary and was looking after establishment matters of the respondent commission. He was also In- charge Secretary, Gujarat Public Service Commission for the considerable period. He has, therefore, submitted that it was only because of this reason no further application was moved before this Court for vacating ex-parte ad- interim order granted by this Court. 20. Mr.Upadhyay has further submitted that in Special Civil Application No.6437 of 1999 though a very short point was raised as to why the persons who were, even according to Gujarat SCA/6437/1999 21/48 JUDGMENT Public Service Commission, repatriated to the State Government were shown in the seniority list, the said petition was contested by tooth and nail. Not only that even the orders of this Court dated 31.12.1999 and 5.5.2000 were not complied with by the authorities. Mr.Upadhyay further submitted that the seniority list dated 24.8.1999 clearly states that the said seniority list was published after considering the objections received pursuant to the provisional list dated 13.4.1999, and after considering the Government Resolution, Notification and the contentions raised by Mr.Dhruva, the petitioner in Special Civil Application No.10548 of 1998 and the final order of this Court passed in the said matter. 21. As far as Special Civil Application No.6437 of 1999 is concerned, the main grievance raised by the petitioner was that the respondent authorities were not publishing the SCA/6437/1999 22/48 JUDGMENT final seniority lists and were acting arbitrary in the matter of fixation and publication of seniority lists. Pursuant to the order passed by this Court, on 26.2.1999, the final seniority list was published by the respondent on 24.8.1999, for the cadre of Assistant (Deputy Section Officer). However, for the reason best known to them, the respondent authorities have arbitrarily included persons repatriated to State Government at Serial Nos.13, 14, 17, 23, 24, 30, 31, 33, 34, 35 and 53. These persons were not part of the establishment of the respondent commission and were repatriated to Sachivalaya. He has further submitted that inclusion of these persons in the seniority list was arbitrary and that has caused prejudice to Mr.Dhruva by at least 27 ranks in the seniority positions. In the final seniority list of 24.8.1999, the ratio of direct recruits, promotees and semi direct recruits, fixed for different periods SCA/6437/1999 23/48 JUDGMENT was indicated. From 1.5.1960 to 14.8.1969, the ratio between direct recruits and promotees was 3:1. From 15.8.1969 to 8.5.1977, this ratio was 2:1. From 9.5.1977 to 15.2.1978, the ratio between direct recruits, promotees and semi direct recruits was 3:2:1, whereas, from 16.2.1978 to 31.12.1998, it was 1:1:1. If the persons falling in the category of direct recruits and repatriated to Sachivalaya were excluded, the placement of Mr.Dhruva would have been much ahead of those persons who have taken advantage of such inclusion. He has further submitted that the exclusion of persons would lead to a situation, where Mr.Dhruva would immediately be required to be considered for promotion on the post of Section Officer, that too, with deemed date, for which the respondent authorities were not ready and just to avoid that situation, the respondent authorities have dragged Mr.Dhruva in one more litigation. On the basis of material produced before the Court SCA/6437/1999 24/48 JUDGMENT and the seniority list of Assistants in Government, Mr.Upadhyay has demonstrated that these very persons were considered while preparing the seniority list of Government Servants and, hence these persons should be excluded from the final seniority list prepared by the respondent commission. 22. This petition was opposed by the respondent commission and affidavit in reply was filed on behalf of the respondent commission. Mr.S.K.Patel and Mr.Trivedi, the learned advocate for the Commission have submitted that all these persons were initially appointed by the respondent commission. It was further contended that all these persons were regularly appointed by the Commission from the beginning of their career. These persons were directly allotted to the commission and they have started career as Assistants in the commission. Hence, there is no question of SCA/6437/1999 25/48 JUDGMENT their repatriation to the Government. All these persons, not only served in the commission but they have also been promoted from Assistants to Section Officers or Accounts Officers, on the basis of their seniority in the commission. It was further contended in the affidavit in reply that once candidates joined the service in Gujarat Public Service Commission as Assistants their respective source of recruitment was taken as basis irrespective of the fact as to whether such candidates have subsequently left services of commission and hence the petition filed by the petitioner should not be entertained. 23. In rejoinder to these submissions made on behalf of the commission, Mr.Upadhyay has submitted that the commission has completely ignored the fact that all these persons were shown in the seniority list in Sachivalaya right from the initial date of appointment and SCA/6437/1999 26/48 JUDGMENT they were accordingly given promotion also on the post of Under Secretary as well as well as Deputy Secretary, in Sachivalaya. He has further submitted that few of these persons have retired also after enjoying seniority and consequential benefits of promotion etc., in Sachivalaya on the strength of said seniority. Mr.Upadhyay has further submitted that somewhere in February, 1995, the commission wrote a letter to the Government that these persons who were in commission and who wanted to opt for Sachivalaya cadre, could be considered on the establishment of Sachivalaya and they would continue to work with the commission on deputation basis and the tenure of such deputation would be at the discretion of commission. It was also specified in the said letter that such persons would not be entitled to any promotion in commission. Mr.Upadhyay has further submitted that this factor was either completely ignored or might SCA/6437/1999 27/48 JUDGMENT deliberately be suppressed from this Court, just to defeat the legitimate claim of Mr.Dhruva. He has, therefore, submitted that the relief claimed by Mr.Dhruva in his petition seeking exclusion of these persons from the seniority list dated 24.8.1999, deserves to be granted. 24. As stated earlier during the pendency of the aforesaid petition, two more petitions were filed by Shri Pathak being Special Civil Application No.200 of 2002 and Special Civil Application No.17164 of 2004. Mr.P.R.Nanavati, learned advocate is appearing on behalf of the petitioners in both these petitions. As far as Special Civil Application No.200 of 2002 is concerned, the main grievance of the petitioner was that one Mr.C.R.Vyas, was promoted to the post of Section Officer on 5.2.1990 on the basis of quota & rota policy adopted by the commission. However, at that time the SCA/6437/1999 28/48 JUDGMENT Government did not come out clearly with the promotional policy which has been subsequently clarified by the Government vide its G.R., dated 18.5.1999 and on the