FA/485/1985 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 485 of 1985 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================= = 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 ? ========================================= = RAKSHABEN KANTILAL PARIKH Versus STATE OF GUJARAT & 1 ========================================= = Appearance : MR BP TANNA for Appellant GOVERNMENT PLEADER for Respondent No.1 NOTICE SERVED for Respondent No.2 ========================================= = CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/05/2008 ORAL JUDGMENT 1. By way of present appeal, the appellant has challenged the judgment and award dated 28.02.1985 passed by the FA/485/1985 2/7 JUDGMENT learned Judge, City Civil Court No.15, Ahmedabad, in Civil Suit No.772 of 1984, wherein by the said suit was dismissed. 2. The facts in brief, as emerging from the record, are as under. 2.1 The appellant – original plaintiff had filed the suit being Civil Suit No.772 of 1984 before the City Civil Court, Ahmedabad against the respondents – original defendants, praying for declaring the order dated 17.01.1984 passed by the Director of Archeology, Gujarat State, Ahmedabad reverting the appellant and transferring her to Rajkot is mala fide, perverse, against the natural justice, illegal and void and further praying for permanent injunction restraining the officers and agents of respondent No.1 from implementing the said order. 2.2 The trial Court, after considering the entire evidence on record, dismissed the suit of the appellant – plaintiff vide impugned and award and hence, the present appeal. 2.3 Heard Mr.B.P.Tanna, learned counsel for the appellant. 3. It is the case of the appellant that the Court below has FA/485/1985 3/7 JUDGMENT appreciated and erred in not appreciating the fact that the appellant is a Class III employee and it is the policy of the Government usually not to transfer Class III employee having regard to the fact that it will create additional burden on her. From the facts of the case, it would be clear that one Mr.Jadeja, the respondent No.2 who was the junior most and was promoted (though not possessing necessary qualification for the post in question) is retained at Ahmedabad whereas the appellant is sought to be transferred to Rajkot and this is a clear case where respondent No.2 is being favoured for the reasons best known to the authorities. The respondent No.2 came at Ahmedabad and being junior most person in the cadre of Assistant Accountant and being otherwise not qualified for the post, out to have been reverted to the post of Senior Clerk. The respondent No.2 continues to hold the post of Assistant Accountant even today and if the respondent No.2 being junior most would have been reverted to the post of Senior Clerk, in that post the appellant could have been automatically accommodated. It is also the case of the appellant that the Court below has not appreciated this important argument and he has merely technically appreciated the fact that respondent No.2 has put in some years at Rajkot and similarly the appellant has put some years at Ahmedabad. The point before FA/485/1985 4/7 JUDGMENT the Court was that the respondent No.2 being the junior – most Assistant Accountant and not holding sufficient qualification for the post in question, he could have been reverted to the lower post and in any case, he could not have been continued as an Assistant Account. It is the case of the appellant that the Court below has appreciated that an inquiry is pending against the respondent No.2 on 16 points and there was some similar inquiry pending against the present in-charge Director, who at the relevant time was the Assistant Director. The allegation of the appellant is that the respondent No.2 was continued at Ahmedabad to facilitate the in-charge Director to give his statement in an inquiry against him by the C.B.I. It is also the case of the appellant that the Court below has appreciated that the transfer order in this case has been passed by the respondent No.1. It is the case of the appellant that on appreciation of the evidence of the appellant, the Court below has come to the conclusion that the appellant's transfer was made by the Acting Director, as he thought that the appellant belong to a group led by Mr.Jain, who is an Archaeological Engineer in the said office. It is the case of the appellant that the Court below has appreciated that there were two factors which have worked together in the facts of the present case. Firstly, the Acting Director though that the appellant belong to FA/485/1985 5/7 JUDGMENT the opposition group and the respondent No.2 was supporting the present Acting Director. For both these reasons, the presence of the appellant was found inconvenient and, therefore, keeping aside the claim of the appellant, the respondent No.2 was continued at Ahmedabad and he was not reverted. These facts, when viewed with the fact that one Mr.N.S.Patel, the senior most Senior Clerk at Ahmedabad who was initially promoted and appointed as Assistant Accountant at Rajkot on 09.01.1994, was abruptly reverted and transferred as Senior Clerk at Bhuj on 17.01.1984 clearly shows that this was made with a view to create one post of Assistant Account at Rajkot. It is the case of the appellant that the respondent No.2 came to be appointed as Assistant Accountant only because the appellant was promoted as Head Clerk and Mr.Dave was promoted as Administrative Officer. It was as a follow-up of that promotion that the respondent No.2 was promoted temporarily. It is quite clear that if Mr.Dave returned to the post of Head Clerk and appellant returned to the post of Assistant Accountant, the respondent No.2 should make way for the appellant. In all fairness the respondent NO.2 should have been posted at Rajkot, but from the perusal of the facts which were stated in the plaint and argued before the Court below, it should have been appreciated by him that with a view FA/485/1985 6/7 JUDGMENT to throw the appellant at Rajkot, Mr.N.S.Patel, who was already posted at Rajkot was abruptly reverted and transferred to Bhuj. Mr.Patel did not take charge at Bhuj; remained on leave and after some time in February, 1984, one post of Senior Clerk was specially created and Mr.Patel was posted at Ahmedabad. IN other words, the respondent No.2 and Mr.Patel came to be accommodated at Ahmedabad and the appellant was made to suffer to go to Rajkot. In view of the aforesaid facts and circumstances of the case, the present appeal is required to be allowed and the order passed by the Court below is required to be quashed and set aside in the interest of justice. 4. It is the case of the appellant that she was reverted and transferred to Rajkot. It is to be noted that after the Court below has dismissed the suit, by efflux of time, the appeal has become infructuous. However, it is made clearly that no final order will be passed in the suit or whatever legal dues entitled by the appellant will be paid in due course. The appellant is at liberty to apply in case of any difficulty. 5. For the foregoing reasons, the present appeal stands disposed of as having become infructuous. FA/485/1985 7/7 JUDGMENT [K. S. JHAVERI,J.] vijay