IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.5089 OF 1990 WITH SPECIAL CIVIL APPLICATION NO.3241 OF 1995 WITH SPECIAL CIVIL APPLICATION NO.7000 & 7688 OF 1999 With CA No.7821/01 & CA 11962/01 WITH SPECIAL CIVIL APPLICATION NO.7817 with CA 7116/02 & SCA 9942 OF 2002 WITH SPECIAL CIVIL APPLICATION NO.994 OF 2003 WITH SPECIAL CIVIL APPLICATION NOS.10881, 11210 of 2002 3147, 3152, 3159, 3162, 3164, 3166, 3167, 3168, 3169, 3170, 3171, 3172, 3173, 3174, 3175, 3176, 3177, 3178, 3179, 14058, 14060, 14061, 14062, 14370 & 14371 of 2003 HON'BLE MR.JUSTICE K.S.JHAVERI ============================================================ 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 : 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- K S PATEL Versus SHRI SUCCESSOR IN OFFICE OF THE COLLECTOR -------------------------------------------------------------- Appearance: Mr. P.M. Raval, Mr. Bhaskar P. Tanna, Senior Counsel, with Ms Mahrook N. Kerrawala, Mr. D.C. Raval, Mr. D.A. Bambhania, Mr. I.S. Supehia and Mr. N.K. Majmudar for the petitioners. Mr. Kamal B. Trivedi, Additional Advocate General with Ms Sangeeta K.Vishen for Respondent-State, & Mrs Ketty Mehta for respondents in SCA Nos.7000 & 7688/99. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.S.JHAVERI Date of decision: 16/09/2004 ORAL JUDGEMENT 1.0 In these petitions a common question of law is involved and therefore they are dealt with by this common judgement. 1.1 In SCA No.5089/90 the petitioner has prayed for a direction to restrain the respondents from reverting the petitioner before the juniors to the petitioner are reverted. 1.2 In SCA No.3241/95 the petitioners prayed for a direction to consider the case of the petitioner therein for promotion to the Class II post in the cadre of City Survey Superintendent on the basis of pre-29.8.1984 rules and to consider their case for promotion to the post of Shirestedar/Head Clerk from the date on which unqualified persons were promoted and further giving the benefit of deemed date of promotion, pay fixation, arrears of salary and further promotion, etc. 1.3 The petitioners in Special Civil Application Nos.7000/1999 and 7688/99 are the employees (hereinafter referred to as the second group of petitioners) who are affected by the issuance of the Circular dated 6th March 1995 by virtue of the fact that though they had cleared the departmental examination and they being eligible for the promotion to the higher post, in view of the fixation of the deemed date by Circular dated 6th March 1995, they were deprived of their right of promotion and other consequential benefits. Therefore, those petitioners have challenged the decision dated 6th March 1995 and also prayed to quash the promotion orders passed and seniority list prepared in pursuance of the aforesaid decision dated 6th March 1995.. 1.4 In Special Civil Application Nos.7817 and 9942 of 2002 the prayer is to quash and set aside the order dated 17.6.2002 and 18.9.2002 respectively and for a declaration that the petitioners were given the deemed dates rightly and properly in the cadre of Shirestedars and Senior Clerks. 1.5 In Special Civil Application No.994/2003 and in Special Civil Application Nos. 10881, 11210 of 2002, 3147, 3152, 3159, 3162, 3164, 3166, 3167, 3168, 3169, 3170, 3171, 3172, 3173, 3174, 3175, 3176, 3177, 3178, 3179, 14058, 14060, 14061, 14062, 14370 & 14371 of 2003, the prayer is to quash and set aside the orders dated 8.7.2002 and 18.9.2002. By the decision dated 8th July 2002, passed by the Settlement Commissioner and Director of Land Reforms, Gujarat State, the benefits which were granted to the petitioners pursuant to the decision of the said authority dated 6th March 1995 were sought to be withdrawn. By the said decision the respondent authority has directed to reshuffle the deemed date given to the employees and to follow the guidelines issued on 13th August 1993. By order dated 18th September 2002 the deemed date given to the first group of petitioners in the cadre of senior clerk as well as Sheristedar has been cancelled and sought recovery of the payment made to them. Therefore, the aforesaid petitioners have challenged both the decisions dated 8th July 2002 and 18th September 2002. 2.0 The brief history of the events pertaining to the present petitions as they emerge from the record are as under: 2.1 One Shri H.M. Patel, working as Field Party Surveyor in the office of the Superintendent of Land Records, preferred Appeal No.84/81 before the Gujarat Civil Services Tribunal, Gandhinagar challenging the order of promotion to the post of Senior Clerk of a person who has not passed the qualifying departmental examination. The question raised in the said appeal was to the effect that whether the promotion can be given to the post of Senior Clerk without passing the qualifying examination. The Tribunal, by judgement and order dated 17th January 1983 allowed the said appeal. The operative part of the said judgement reads as under: "2. The appellant Shri Harish M.Patel who has passed the qualifying examination under Land Records Qualifying Examination Rules, 1970 is entitled to be promoted to the post of Senior Clerk, which is a higher post and to which a person belonging to subordinate to land records service as defined in rule 2(k) of the Land Records Qualifying Examination Rule, 1970, is entitled to be promoted. As there are other such persons who are senior to the appellant, who have passed the qualifying examination and yet who are not promoted as Senior Clerk, the Settlement Commissioner is directed to give promotion to all qualified persons in light of the above observations and the case of the appellant Shri Harish M. Patel shall also be considered along with other qualified persons and they may be promoted to the post of Senior Clerk by Reverting, if necessary, the Senior persons who have already been promoted, but who have not passed the qualifying land records examination prescribed under the land records qualifying examination rules, 1970 and the appellant along with others be given deemed date of promotion when they ought to have been promoted under the rules. The said order shall be passed within three months from the receipts of the order. Though the appellant would not be entitled to any arrears, his pay on promotion must be fixed by notionally fixing the pay from the departments of promotion that may be presented to him." 2.2 Since the senior persons to said Shri H.M. Patel were not granted the aforesaid benefits, they approached the Gujarat Civil Services Tribunal, Gandhinagar, by way of filing Appeals No.234/84, 250/87, 335/87, and 109/87. The said appeals were allowed by common judgement and order dated 20th November 1992. The operative part of the said judgement reads as under: "All the appeals are allowed and it is ordered that cases of all the appellants for promotions as Senior Clerk and further promotions be decided as per direction of this Tribunal in judgement dated 17.1.1983 in Appeal No.84 of 1981 in the case of H.M. Patel Versus Settlement Commissioner and Director of Land Records, Gujarat State, Ahmedabad and two others. Such promotions of the Appellants with deemed dates would be notional i.e. they would not be entitled to any arrears of pay etc. It is also directed that cases of all the employees in Land Records Department throughout the State of Gujarat of the time prior to notification dated 29th August 1984 should also be similarly decided as per directions of this Tribunal in case of H.M. Patel. Promotions of such employees with deemed dates should also be notional i.e. they would not be entitled to any arrears of any Cases of employees for promotion subsequent to notification dated 29th August 1984 should be decided as per directions contained above in the body portion of this judgement." 2.3 Pursuant to the aforesaid order of the Gujarat Civil Services Tribunal, Gandhinagar, the State Government viz. the Settlement Commissioner by Circular dated 13th August 1993, issued certain guidelines whereby it was directed to give deemed date of promotion to the eligible employees pursuant to the judgement of the Tribunal. 2.4 In the meantime, since the directions of the Tribunal remained uncomplied with, some of the employees who had passed the examination had approached this Court by filing Special Civil Application No.12877 of 1993. This Court, while issuing notice in the matter on 10th November 1993, passed the following order: "Notice returnable on December 02, 1993. By way of interim direction, it is ordered that the respondent shall consider the case of the petitioner in accordance with the judgement dated November 20, 1993 in Appeal No.234/87 decided by Gujarat Civil Service Tribunal, Gandhinagar (Annex `B' to the petition) and without following that, they shall do nothing in the matter stated herein up to 2/12/1993". 2.5 Thereafter the matter came to be admitted on 26th April 1994 and this Court observed as under: "Rule returnable on 30.6.1994. In the meantime, the respondents are directed to comply with the direction of the Tribunal, in respect of 5 circles, Annexure `A' & `Body' and prepare the list pertaining to all circles strictly in conformity with those orders. It is directed that while doing so, the respondents shall essentially follow the said orders and also rules and more particularly also the date of passing of the qualifying examination and not adopting quota system between qualified and non qualified candidates. The list so prepared be placed before the Court on 30/6/1994". 2.6 Pursuant to the orders of this Court the Settlement Commissioner modified the directions issued vide Circular dated 13th August 1993 by Yadi (hereinafter referred to as the order) dated 6th March 1995 wherein it is stated that deemed date in the cadre of Senior Clerks would be given to all those who were qualified over those non-qualified Senior Clerks during the period between 1975 to 1984. In pursuance of the said order Special Civil Application No.12877/93 came to be withdrawn. The said order reads as under: "Mr. Anand tenders a letter dated 7th March 1995, written to him by all the petitioners, stating that they are no longer desirous of prosecuting the petition further. Mr. Dave is present for the respondents. Mr.Anand seeks leave to withdraw the petition, in view of that letter petition dismissed as withdrawn. Rule discharged. The interim order therefore stands vacated. The letter is kept on record, marked X" 2.7 According to the petitioners, subsequently a meeting was conducted on 25th August 1995 wherein the representatives of Government as well as employees were present and the guidelines issued on 6th March 1995 were the subject matter of discussion. The petitioners stated that on 7th September 1995 in the presence of the Settlement Commissioner and the Secretary of the Revenue Department the issue was discussed and authority was granted to the Settlement Commissioner to resolve the question of deemed date and the decision of the Settlement Commissioner was informally approved by the State Government. 2.8 Pursuant to the order dated 6.3.1995 the first group of petitioners were given deemed date of promotions. It is the case of the first group of petitioners that though the respondents were supposed to follow the directions contained in the order dated 6th March 1995, without any valid reasons and without following any procedure, the Settlement Commissioner reviewed the same and cancelled the instructions contained in paragraphs 2 and 4 of the Order dated 6th March 1995 by his order dated 8th July 2002 and further directed to reconsider the deemed date which was given to the employees and that the same may be reconsidered in pursuance of the guidelines issued on 13th August 1993. The reasons assigned by the respondent authorities to cancel the order dated 6th March 1995 are to the effect that the directions contained in the order dated 6th March 1995 were not in consonance with the directions of the Gujarat Civil Services Tribunal dated 17.1.1983; that in Class III cadre, by virtue of passing the L.R.Q Examination, a junior in cadre gets undue advantage over his senior which is against the principles of natural justice; that L.R.Q. Rules only give a right of early promotion to such employee who has passed the examination earlier and it does not give any right to claim seniority; that by issuing deemed date orders many problems were created and that the order dated 13.8.1993 were more than sufficient and thus order dated 6th March 1995 is cancelled. While passing the above order dated 8th July 2002 the Settlement Commissioner has considered the judgement of the Tribunal as well as the instructions issued by the State Government on 24th May 2002. 2.9 In the year 1995, certain employees of the Land Records Department, who had not passed the L.R.Q. Examination have approached this Court by filing Special Civil Application No.2894/95 seeking a declaration that seniority of the employees is governed by the principle of continuous officiation. A further declaration has been sought for that it was not obligatory for the employees to pass L.R.Q. Examination as a condition precedent for further promotion to the post of senior clerk in Class III service. This Court, by order dated 18th June 1997 dismissed the said petition. 2.10 Pursuant to the order dated 8th July 2002, the first group of petitioners were issued show cause notice dated 1st August 2002 calling upon them to show cause as to why deemed date orders issued to them should not be cancelled. The said petitioners submitted detailed representation on 9th August 2002. Ultimately vide order dated 18th September 2002 the deemed date given to the first group of petitioners in the cadre of senior clerk as well as Sheristedar has been cancelled and the excess amount paid, if any, was sought to be recovered from the concerned employees. 2.11 It is under the aforesaid circumstances the first group of petitioners challenged the orders dated 8th July 2002 and 18th September 2002. 3.0 As stated earlier, the second group of petitioners are the employees who are allegedly affected by the issuance of Circular dated 6th March 1995 inasmuch as though they had cleared the departmental examination and they are eligible for promotion to the higher post, because of the wrong continuation of the deemed date, they are wrongly deprived of their right of promotion. 4.0 The contentions raised by Mr. B.P. Tanna, learned Senior Counsel on behalf of the first group of petitioners can be summarized as under: (i) That as per LRQ Examination Rules coupled with the direction of the Tribunal in judgements dated 17.1.1983 and 20.11.1992, the cases of those persons who were working in the department at the time of notification dated 29.8.1984 and who have passed the examination, have to be considered over the case of such senior employees who have been promoted but who have not passed the LRQ Examination. It is upon these principles the petitioners have been given deemed date of promotions both in the cadre of senior clerks/maintenance surveyors and in the higher cadre of Sheristedar and the respondents now cannot revert the position. (ii) That the Tribunal vide judgement dated 20.11.1992 has clearly directed that the department shall consider the case of all employees in Land Records Department throughout the State of Gujarat of the time prior to notification dated 29.8.1984 and the case of all such employees should be decided as per directions of the Gujarat Civil Service Tribunal in the case of Shri H.M. Patel. Therefore the petitioners are entitled to be promoted under the Rules. (iii) That the order dated 6th March 1995 had been passed in pursuance of the interim orders issued by this Court dated 10th November 1993 and 26th April 1994 and therefore, the respondent authorities could not have cancelled the said order without obtaining prior permission of this Court. (iv) That the Hon'ble Supreme Court and this Court has laid down the principle that seniority which has been settled for a long period of time cannot be allowed to be unsettled by any person who undoubtedly may have a rightful claim but who has approached the court at a delayed stage. By no stretch of imagination the State Government can reconsider the decision after a period of seven years, which has attained finality. In short, having allowed the order dated 6th March 1995 to continue for all these years, the respondent authorities are estopped from withdrawing the same and withdrawing the deemed date orders passed on the said basis. (v) That the deemed date has no concern with the existing posts and therefore the order issued by the State Government dated 6th March 1995 is just and proper. (vi) Since the deemed date of promotion was given by virtue of the order dated 6th March 1995, the said order could not have been cancelled without giving the petitioners a chance of hearing. (vii) That the show-cause notice dated 1st August 2002 has been drafted at a stage where the respondent authorities were pre-decided as regards cancelling the deemed date orders which is not in accordance with law. 5.0 Mr. N.K. Majumudar, who is appearing on behalf of some of the first group of petitioners submitted that he adopts the submissions advanced by Mr.B.P. Tanna, learned Senior Counsel. However, he further submitted that all the petitioners have passed Land Record Examination within prescribed chances and therefore as per Rule 4(1)(3) of Land Records Qualifying Examination Rules, 1970, they are entitled to retain their seniority. He also relied upon the order passed by the Tribunal and also contended that there is an unreasonable delay in passing the impugned order. 6.0 Mr. Supehia, who is appearing on behalf of some of the first group of petitioners submitted that he adopts the submissions of Mr. B.P. Tanna, learned Senior Counsel. He further submitted that since the petitioners have already retired, no recovery may be made and their pension may not be disturbed. 7.0 I may now advert to the contentions raised on behalf the second group of petitioners in Special Civil Application No.7000/1999. Mr. Bambhania, learned counsel raised the following contentions: 7.1 Mr.Bambhania submitted that the Government of Gujarat has sanctioned only 21 posts of Senior Clerks and at no point of time the cadre strength has been enlarged by the subordinate officers like Superintendent of Land Records, and or Settlement Commissioner and Director of Land Records. The power to increase the posts and cadre strength vests with the Government in Revenue Department, who can enlarge the cadre strength with the prior permission of the Government in General Administration Department, and Government in Finance Department. It is the specific plea and case of the original petitioners that the Government has neither sanctioned the additional posts and/or permitted even for a temporary period to enlarge the cadre strength than sanctioned by the Government. 7.2 According to Mr. Bambhania, the total posts of Senior Clerk throughout the State can be manned by the employees promoted to the post of Senior Clerk from the feeder post of Junior Clerk and/or Surveyors. 7.3 He submitted that from the Desai Pay Commission onwards, the Senior Clerk cadre pay scale has been less than other cadre to which the Surveyor and Junior Clerk cadre is the feeder cadre. 7.4 He next contended that the directions of the Tribunal cannot be given a scope to extend promotion to all the employees of the State who had passed the Land Revenue Qualifying Examination shall be promoted irrespective of posts and accordingly more than 500 persons are extended such promotion as against less than 50 posts of senior clerks on extraneous consideration which is the subject matter of challenge before the Hon'ble Tribunal by examining the promotion rules, cadre strength, rules and Bombay Civil Services Rules, 1959 regulating the appointment by way of promotion. 7.5 According to Mr. Bambhania, the total strength cannot be enlarged by the divisional offices and/or by the Government in Revenue Department. Even in the present case, the Government in General Administration Department and Government in Finance Department has examined the issue and clarified that as against one unqualified one qualified to be substituted i.e. 1:1 by reverting one and replacing the one who ought to have been considered at the time vacancy was occupied by the unqualified person. According to the second group of petitioners the orders came to be passed ignoring all the rules and regulations and the law on the subject. 7.6 Mr. Bambhania submitted that any action and orders passed on the basis of asserted orders of this Court, which has factually incorrect foundation, cannot be given effect to as the officer who has passed the order had no authority to pass the instructions, which runs counter to the statutory rules and which has overriding effect over the instructions issued and orders passed. 7.7 Learned counsel submitted that by virtue of direction and observations, no employee can jump the promotion queue and procedure on the grounds of having passed the LRQ Examination. The post of Junior Clerk has the first promotion of Surveyor and thereafter Senior Clerk/Maintenance Surveyors, Sheristadars, etc. As per judgement of the Tribunal, if any person who has passed the LRQ Examination from inferior service is available as per statutory rules and seniority, the unqualified person must give room to him. The equation should be 1:1 which shall not exceed the cadre strength. 8.0 In substance, learned counsel has supported the impugned orders challenged by the first group of petitioners. 9.0 Affidavit in replies have been filed on behalf of the respondent authorities. The main defence urged by Mr. Kamal Trivedi, learned Additional Advocate General are as under: 9.1 Mr. Trivedi submitted that the instruction issued on 6th March 1995 is neither in consonance with the statutory rules nor the same is in consonance with the judgement of the Tribunal, and pursuant to the direction of the Tribunal in above referred appeal of Shri H.M. Patel, directions were already issued on 13th August 1993 which was in compliance with the order of the Tribunal. 9.2 According to Mr. Trivedi, the interim orders of this Court passed in SCA No.12877/95 were already complied with by issuing directions to the authorities by instructions dated 13th August 1993, but ignoring the same the order dated 6th March 1995 came to be issued which is bad in law. 9.3 Mr. Trivedi contended that the instructions issued on 6th March 1995 is in violation of basic principle of service jurisprudence inasmuch as deemed dates are given to the employees even though there were no sanctioned posts and the instructions issued by the Tribunal is to give deemed date only against such sanctioned posts. By giving such deemed date not only the Government is burdened with financial liability, but also the statutory provisions are violated and has ignored the judgements of this Court whereby persons who are qualified on the date of promotions were deprived of their rights because of this aforesaid decision and such eligible persons were made juniors, which is not the object of the statutory rules. Therefore, considering the administrative exigency and burden on the State Government, the State Government has thought it fit to cancel paragraphs 2 to 4 of order dated 6th March 1995. 9.4 Mr.Trivedi submitted that as per the concept of "Deemed Date", it is only when any junior is promoted disregarding the senior, then in that case, deemed date of promotion is required to be given to the senior employee with effect from the date of promotion of the junior. In other words, the benefit of deemed date to be given to any senior/qualified employee has to be referable and related to the number of junior/non-qualified employees who might have been promoted in disregard of senior/qualified employees. 9.5 According to Mr. Trivedi, the instructions contained in letter dated