IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 113 of 1988 in SPECIAL CIVIL APPLICATIONNo 5987 of 1986 For Approval and Signature: HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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? -------------------------------------------------------------- NIHARIKA J CHRISTOPHERSON Versus GOPAL SWAMI OR HIS SUCCESSOR -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 113 of 1988 MR ATUL H MEHTA for Appellant No. MR HC PATEL AGP for Respondent No. 1,2-4 RULE SERVED for Respondent No. 5 -------------------------------------------------------------- CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE H.K.RATHOD Date of decision: 29/01/2004 ORAL JUDGEMENT (Per : HON'BLE THE CHIEF JUSTICE) This Letters Patent Appeal is directed against the order of the learned Single Judge dated 5.4.1988 passed in Special Civil Application No. 5987 of 1986. Petitioner was selected and appointed as a clerk in Rajkot District. She applied for transfer from Rajkot District to Panchmahals District. Accordingly, she was transferred to Panchmahals District. In 1982, she was promoted as a Deputy Mamlatdar at Panchmahals District. On 14.5.1985, she submitted an application for transfer from Panchmahals District to Baroda District. She gave consent dated 29.11.1985 to the effect that on her transfer to Baroda District, she may be placed at the bottom of the seniority list. Accordingly, she was transferred to Baroda District from Panchmahals District. Through application dated 29.4.1986, she stated that in case, if there is objection to her transfer by anybody, any order that may be passed by the competent authority would be acceptable to her. After correspondence with the State Government, she was placed in the cadre of Clerk. She challenged this decision through special civil application no. 5987 of 1986 and got interim relief by way of stay against the reversion to the lower post. The State Government move seems to be on the pressure by the Employees Union against her transfer from Panchmahals District to Baroda District. It seems, the petitioner also gave consent for accepting any order that may be passed with regard to her service. The question for consideration and determination is whether the petitioner has rightly been placed in the bottom of the Deputy Mamlatdar seniority list in Baroda District and whether her seniority can be in the cadre of clerks or not? It is a settled principle of law that a citizen cannot waive his fundamental right nor he can be compelled to do so by the State. The petitioner was a Deputy Mamlatdar in Panchmahals District. She sought transfer from Panchmahals District to Baroda District in the same cadre. This request was accepted and she was transferred to Baroda District as Deputy Mamlatdar, placed junior in the cadre. To this extent, the action is justified. However, further decision of the authority taking her consent for being placed in the category of clerks cannot be upheld. More so when it transpires that the decision has been at the instance/pressure of the Employees Union which seems to have agitated the matter before the Civil Court. The petitioner cannot be posted as a clerk nor could she be shown in the cadre of seniority list of clerks when she is holding the post of Deputy Mamlatdar, a rank higher/superior than the post of a clerk. Accordingly, the decision posting her less than Deputy Mamladar/Clerk and showing her in the seniority list of clerks is thoroughly unjustified, unreasonable and unconstitutional, therefore, requires to be set aside. Consequently, this appeal is allowed. The order of the learned Single Judge dated 5.4.1988 passed in Special Civil Application No. 5987 of 1986 is hereby set aside. The petitioner shall be holding the post of Deputy Mamlatdar continuously and entitled to all the consequential benefits of the post including the seniority and future promotions with such other consequential benefits. There shall be no order as to costs. In view of these orders, Civil Application No. 733 of 1988 shall stand disposed of with no order as to costs. [ BHAWANI SINGH ] CHIEF JUSTICE [ H.K.RATHOD ] JUDGE #vyas#