FA/446/2006 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 446 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ====================================== 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 ? ====================================== BHARATSINH P CHUDASAMA & ORS - Appellant(s) Versus STATE OF GUJARAT & ANR - Defendant(s) ===================================== Appearance : MR CB DASTOOR for Appellant(s) : 1 - 5. MR KD PANDYA, AGP for Defendant(s) : 1, MR HS MUNSHAW for Defendant(s) : 2 - 3. ====================================== CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 16/05/2008 ORAL JUDGMENT 1. This appeal is preferred under Section 96 of the Civil Procedure Code and directed against the judgement and order passed by the FA/446/2006 2/13 JUDGMENT learned City Civil Court, Ahmedabad dated 06/01/2006 in Civil Suit No. 4330/1995 by which the learned Judge has dismissed the suit. 2. The appellants are the original plaintiffs and the respondents are the original defendants in the suit. For the purpose of convenience, the appellants are hereinafter addressed as the plaintiffs and the respondents are addressed as the defendants. 3. The brief facts, of the present appeal, are stated as under: 3.1. The plaintiffs joined as work charge clerks in Public Health and Engineering Department of the State Government and subsequently, they were transferred to the Gujarat Water Supply and Sewerage Board, the defendant no. 2, on 01/04/1981. It is clear from the plaint that the defendant – Board published provisional seniority list on 04/10/1985 and the plaintiffs were placed at Serial Nos. 35, 34, 37, 28 and 21 respectively in the said seniority list. It is further averred in the plaint that they were promoted and as on today, they are on the higher post since 1988. Without considering the previous service and without following the principles of natural justice, the defendant – Board published another seniority list on 07/01/1994 wherein the plaintiffs have been placed at Serial Nos. 141, 142, 168, 100 and 57. The plaintiffs have raised objections in this regard. However, the objections have not been decided by the defendant – Board by affording an opportunity to the plaintiffs of being heard. The defendant – Board, by publishing the seniority list of 1994, wants to supersede the original seniority list of 1985. It is contended by the plaintiffs that if the defendant – Board ultimately succeeds in superseding the earlier list of 1985, then their statutory rights would be gravely affected. The defendants are also intending to revert the plaintiffs from the present FA/446/2006 3/13 JUDGMENT promoted post to the lower post. It is also contended that the defendant – Board had changed the date of the plaintiffs appointment in an illegal manner without following the due process of law. In view of the averments made in the plaint, the plaintiffs have set out a prayer that the defendants be directed not to disturb the seniority of the plaintiffs and they be restrained from operating the seniority list of 1994. It is also prayed by the plaintiffs that the benefits, which were given to the plaintiffs, with regard to the service conditions, may not be withdrawn during the pendency of the appeal. 3.2. The defendants nos. 2 and 3 filed purshis, vide Exh. 130, and adopted the reply to the Notice of Motion filed by one Shri J.C. Shah as their written statement. It is contended in the written statement that the suit of the plaintiffs is not maintainable at law as well as on the facts of the case. It is further contended that the Court should not interfere with the seniority list fixed by the Administrative Officer of the defendant – Board. The defendant – Board is a statutory Board constituted under the Gujarat Water Supply and Sewerage Board Act on 01/04/1981. The plaintiffs, who were the work charge clerks in the Public Health and Engineering Department of the State Government, prior to the constitution of the defendant – Board, stood transferred as the work charge clerks on the formation of the defendant – Board on 01/04/1981. The seniority list of 1985 was published provisionally and it was not a final seniority list. The seniority list of 1994 was published provisionally with a view to rationalise the service condition of the entire staff. It is contended that with the publication of the seniority list of 1994, the earlier seniority list of 1985 was superseded and the plaintiffs cannot ask for any right on the basis of the seniority list of 1985. As per the contention raised by the plaintiffs, the appointment date of the plaintiffs were fixed erroneously in contradiction and in violation of the FA/446/2006 4/13 JUDGMENT provisions of the relevant notification in the list of 1985. According to the defendants, the plaintiffs cannot base their claim on erroneous decision of a particular Officer. Thus, the suit filed by the plaintiffs deserves to be dismissed. 3.4. The learned Judge on the strength of the averments made in the plaint as well as in the written statement, framed the issues vide Exh. 31. The learned Judge, considered the entire gamut of oral deposition and the documentary evidence, relied upon by both the sides, held that the plaintiffs have not established that the seniority list notified in the year 1985 had become final and, therefore, they cannot claim any right on the basis of the provisional seniority list of 1985. While the defendants have established that the seniority list of the Junior Clerks covering the period from 01/04/1981 and 31/08/1984 and published on 04/10/1985 was prepared on the basis of the guidelines as stated in the circular dated 01/06/1985 and it was a provisional seniority list and not a final seniority list. In view of the aforesaid facts and circumstances, the learned Judge held that the plaintiffs cannot claim any right in view of the provisional seniority list of 1985 and dismissed the suit of the plaintiffs. The learned Judge with regard to issue nos. 3 and 4 held that in view of the findings given with regard to issue nos. 1 and 2, the question does not survive, while the learned Judge with regard to issue no. 5 held that the suit is bad for non-joinder of the necessary parties as some of the affected persons were not joined by the plaintiffs while filing the present suit. Thus, the learned Judge, on overall perusal of the documentary evidence and oral deposition, held that the seniority list, which was published by the administrative authority, cannot be interfered with in the absence of other employees, which are shown in the disputed seniority list, because they are the necessary parties. It is held by the learned Judge that both the seniority lists were provisional in FA/446/2006 5/13 JUDGMENT nature. The plaintiffs cannot base their claim on such a tentative action of the administrative authority. Thus, in the facts and circumstances of the case, the learned Judge dismissed the suit filed by the plaintiffs. 4. The learned advocate representing the plaintiffs submitted that the order passed by the learned Judge is arbitrary, unjust and against the principles of natural justice and violative of Articles 14 and 16 of the Constitution of India and, therefore, it requires to be quashed and set aside. The learned Judge has seriously erred in not appreciating the fact that once the seniority list of the employees has been fixed on the basis of the old circular, then the benefit once given cannot be withdrawn on the ground of new circular or the guidelines with retrospective effect. New Rules, as per the submissions of the learned advocate, would have prospective effect and not retrospective effect. Even the promotions given to the plaintiffs cannot be withdrawn by defendant no.2 in an arbitrary manner. Therefore, the order passed by the learned Judge requires to be quashed and set aside. The learned advocate submitted that even on the basis of principles of estoppal, the impugned order passed by the learned Judge, requires to be quashed and set aside. The learned Judge ought to have appreciated that the plaintiffs were discharging their duties as Junior Clerks and promoted in the year 1988 as Store Keepers and Senior Clerks. The seniority list of Store Keepers and Senior Clerks were published whereby the seniority list of the Store Keepers is made final in the year 2001. The plaintiffs are due for higher promotions and at this stage, by virtue of the new Rules, the seniority list of Junior Clerks is disturbed. Even the plaintiffs are likely to be put in an embarrassing position and thus the service conditions of the plaintiffs, cannot be changed in an arbitrary manner. The learned advocate submitted that the Trial Court has committed egregious error in coming to the conclusion that the suit filed by the plaintiffs is bad for FA/446/2006 6/13 JUDGMENT non-joiner of necessary parties, as large number of employees would be affected. However, it is submitted by the learned advocate that so far as the decision of reversion is concerned, by changing the seniority, it is not necessary to join other party or the defendants. Thus, the learned Judge has committed an error in rejecting the suit filed by the plaintiffs. The learned Judge has committed an error in holding that the seniority list published on 7/11/1984 is provisional and the objections raised by the employees are not decided and, therefore, the plaintiffs can avail of that opportunity and raise the objections against provisional seniority list before the appropriate authority. The learned Judge ought to have held that the apprehension of reversion raised by the plaintiffs is found to be genuine as per the averments made in the written statement by the defendants. Thus, the learned advocate submitted that the learned Judge has miserably failed to appreciate the entire facts on record of the case in its true perspective and as such, the order is liable to be quashed and set aside and the appeal be allowed. 5. The learned advocate has placed reliance on the following judgments in support of his submissions canvassed at the bar:- 5.1. The first judgement cited by the learned advocate is rendered by the Gujarat High Court in the case of I.A. PATEL Vs. BHARAT SANCHAR NIGAM LTD. & Anr. (Coram:- Jayant Patel, J) on 29/11/2007 in Special Civil Application No. 23366/ 2006 wherein it is held that the promotion was given to the petitioner and the same was cancelled with a view to correct the mistake or the error or omission on their part. The impugned order for cancellation of the promotion cannot be said to be arbitrary or unreasonable, but such cancellation will take prospective effect and to say in other words that on account of the cancellation of promotion, the respondent authority will not be able to FA/446/2006 7/13 JUDGMENT recover the amount of difference of salary paid to the petitioner during the period when the promotion order was in force. 5.2. The second judgement is rendered by the Gujarat High Court in the case of RADHA TEJPAL BAJAJ Vs PRESIDENT, INDUSTRIAL COURT & ANR in Special Civil Application Nos. 23433/2006 and other allied matters. This judgement is cited by the learned advocate in support of the submission that the department is not entitled to recover the excess payment, which has been made in favour of the petitioners, on the basis of wrong fixation or erroneous fixation made by the department. When the department has committed mistake while giving the benefit in favour of the petitioners and after number of years, such a mistake has been brought to the notice of the department, which was corrected subsequently, then in such a case, excess amount, which has already been paid to the petitioners by the department, cannot be recovered from the petitioners and such a recovery is ab initio void. 5.3. In Special Civil Application No. 11044/2005, this High Court, (Coram:- Jayant Patel, J.) in the case of THUMMAR ANILKUMAR VALJIBHAI Vs. STATE OF GUJARAT & ANR. held that the order of recovery of the amount of salary from the petitioner, who was working as a teacher for a period during which he had actually worked, cannot be sustained in the eye of law and, therefore, it was quashed and set aside. However, it was clarified that the petitioner would not be entitled to any additional benefit whatsoever for the period during which he had worked, except the salary, which had already been paid to him. 5.4. Special Civil Application No. 4048/2001 is the judgement rendered by Gujarat High Court (Coram:- Jayant Patel, J.) dated 03/02/20033 in the case of S.V. CHAUDHARY Vs. COMMISSIONER OF FA/446/2006 8/13 JUDGMENT SALES TAX. In the aforesaid judgement, the order granting higher pay scale to the petitioner, who was serving as Sales Tax Inspector and retired on 31/03/2001 on his reaching the age of superannuation, was cancelled. The said order came to be challenged in the writ petition. The learned Judge held that the orders dated 25/05/2001 and 30/05/2001 ordering the recovery of difference of amount is not sustainable and the same was quashed and set aside. 5.5. The learned advocate has placed reliance on the judgement rendered in B.A. BRAHMAKSHATRIYA, R.C. TECHNICAL INSTITUTE Vs. DIRECTOR OF TECHNICAL EDUCATION & ORS reported in 2004(1) GLH 768 in support of the submission that once the selection grade is given to the petitioner, the same was cancelled by the authority with retrospective effect and consequential order of recovery was passed. It is held by the learned Judge that once such a benefit was granted, then the same cannot be withdrawn as grant of such benefit was not because of any false information furnished by the petitioner and, therefore, the order of recovery was held to be illegal. 5.6. 2003(1) GLH 697 is the judgement rendered by the Gujarat High Court in the case of M.M. PATEL Vs. STATE OF GUJARAT wherein it was considered that by resolution dated 05/07/1991, Sales Tax Officers were granted higher grade of pay scale from 01/06/1987. By another resolution dated 11/12/1995, the higher grade of pay scale, granted to them, came to be cancelled. After a period of four years, the decision was taken to cancel the earlier decision. It was held that the impugned orders of recovery were bad in law and, therefore, they were quashed and set aside. 5.7. Likewise in the case of I.C. PATEL Vs. GUJARAT HOUSING FA/446/2006 9/13 JUDGMENT BOARD & Anr. in Letters Patent Appeal No. 578/2000, the Division Bench (Coram:- Chief Justice D.M. Dharmadhikari & P.B. Majmudar, J.) held that the Board was restrained from making any recovery of the excess amount, which was paid to the appellant on his gradation and fixation in the pay scale. Thus, the learned advocate submitted that in view of the ratio laid down in the above mentioned judgement, the respondents be restrained from making recovery of the amount, which has already been paid to the appellants. 6. The learned advocates representing the defendants submitted that the necessary parties who would really be aggrieved by the order passed by this Court has not been joined by the plaintiffs, and, therefore, the appeal requires to be dismissed. The seniority list, which is challenged by the plaintiffs and published on 04/10/1985 is provisional in nature and it does not confer any right to the plaintiffs. The learned advocate submitted that since the said list was not finalised, the plaintiffs were placed by another seniority list dated 07/01/1994 at Serial Nos. 141, 142, 168, 100 and 57. Even this list, as per the submission of the learned advocate, is a provisional list. The objections are not invited and no final decision is taken with regard to the inter se seniority of the plaintiffs alongwith other employees. It is true that the plaintiffs were shown at Serial Nos. 35, 34, 37, 28 and 21 respectively in the earlier seniority list published on 04/10/1985 but subsequently, they were placed at Serial nos. 141, 142, 168, 100 and 57, vide the seniority list published on 07/01/1994. Both these lists are provisional and not final in nature, and, therefore, the learned advocate submitted that it does not confer any right to the plaintiffs and, therefore, the contention raised by the learned advocate is without any substance and the same deserves to be rejected. On perusal of the entire evidence on record of the case, the learned Judge has rightly held that both the seniority lists were FA/446/2006 10/13 JUDGMENT provisional in nature, and, therefore, the plaintiffs cannot base their claim on such a tentative action on the part of the administrative authority. It is also held by the learned Judge that the employees who are shown in the seniority list are necessary parties, and in their absence, the Court cannot interfere with the seniority list published by the administrative authority, which would adversely affect their right. The learned advocate submitted that in view of the aforesaid facts and circumstances, the learned Judge has rightly dismissed the suit filed by the plaintiffs and there is no reason to interfere with the order passed by the learned Judge in the appeal preferred by the plaintiffs and the appeal deserves to be dismissed. 7. I have heard learned advocate Mr. C.B. Dastoor for the plaintiffs, Mr K.D. Pandya, learned AGP for defendant no. 1, and learned advocate Mr. H.S. Munshaw for defendants nos. 2 and 3 at length and in great detail. I have also perused the judgement rendered by the learned City Civil Judge and the reasons assigned by him. The Record and Proceedings of Civil Suit No. 4330/1995 was called for by this Court and I have gone through the documentary evidence and the oral deposition adduced by the parties to the suit. 8. The main contention of the plaintiffs in the present appeal is that by publishing the seniority list on 04/10/1985, their seniority was fixed at Serial Nos. 35, 34, 37, 28 and 21 respectively and subsequently, vide seniority list dated 07/01/1994, their seniority was re-fixed at Serial Nos. 141, 142, 168, 100 and 57. It is the contention of the plaintiffs that they were given the benefit of higher pay scale and, therefore, the benefit, which was given to them, cannot be withdrawn, in view of the fresh seniority list, which was published on 07/01/1994. FA/446/2006 11/13 JUDGMENT 9. On re appreciating and re evaluating the evidence on record of the case, it becomes clear that the defendant – Board had published the first seniority list on 04/10/1985 and subsequently, the second seniority list on 07/01/1994 and both the seniority lists are provisional. It is strenuously contended by the learned advocate on behalf of the plaintiffs that the benefit of higher pay, which was given to the plaintiffs and the financial benefit, which had accrued to the plaintiffs, are likely to be withdrawn by the defendant – Board. The learned advocate has heavily placed reliance on the documents produced vide Annexure “B”, Annexure “C” as well as Annexure “E” to the Civil Application bearing no. 4285/2008 & 3810/2008, in support of the said contention. On perusal of Annexure “B”, Smt. Arunaben Dilipkumar Desai and Kum. Divyaben Mangaldas Patel are sought to be reverted from the post of Senior Clerk to Junior Clerk. On perusal of Annexure “C”, it becomes clear that the financial benefit, which had accrued to them was also sought to be withdrawn by the Board and, therefore, the learned advocate has rightly raised the contention that once the benefit is given to the employees the same cannot be withdrawn even if the promotion was given by the defendant – Board by mistake. The benefit of mistake or error cannot be granted in favour of the Board and, therefore, the prayer is made by the learned advocate for the plaintiffs that the financial benefit or monetary benefit, which was granted to the appellants (original plaintiffs) may not be withdrawn. 10. I have also considered the judgements cited by the learned advocate on behalf of the plaintiffs and taking into consideration the ratio laid down in those judgements, which I have discussed in the earlier part of the judgement, the financial benefit, which was given to the plaintiffs, cannot be withdrawn. In view of the aforesaid facts and circumstances, the defendant - Board is required to be restrained from FA/446/2006 12/13 JUDGMENT making any recovery of the excess amount, which was paid to the appellants (original plaintiffs). In case, any amount is recovered from any of the appellants (original plaintiffs), the defendant – Board is directed to refund the same. 11. The learned advocate on behalf of the plaintiffs has also challenged the provisional seniority list on the ground that after fixing the seniority list on 04/10/1985, the same was re-fixed by another seniority list dated 07/01/1994. However, as both the lists are provisional seniority lists, it would be desirable to direct the defendant - Board to invite the objections from the aggrieved parties and consider their representation before finalising the seniority list. 12. On perusal of the record of the case, it becomes clear that some of the persons who are adversely affected are not joined as parties in the present appeal but in view of the judgement rendered by the Apex Court in the case of V.P. SHRIVASTAVA AND ORS Vs STATE OF M.P. AND ORS, reported in 1996 AIR SCW 946 as well as in the case of UNION OF INDIA Vs. SMT. SADHANA KHANNA in JT 2008 (1) SC, 161, since the government is the necessary party, government can take care of those who are affected or likely to be affected. Be that as it may, as the seniority lists published on 04/10/1985 as well as 07/01/1994 are provisional in nature, the defendant - Board would not straight away implement the seniority list in question as contended by the plaintiffs. The defendant - Board is required to entertain the objections raised by the employees against the publication of the provisional lists and after considering the objections, re-fix the seniority of the employees. It is also submitted by the learned advocate representing the defendant - Board that the objections raised by the plaintiffs as well as the other aggrieved employees would be considered by the defendant - Board FA/446/2006 13/13 JUDGMENT before finalising the seniority lists of 04/10/1985 as well as 07/01/1994. 13. In view of the foregoing discussion, the plaintiffs cannot challenge the seniority lists dated 04/10/1985 and 07/01/1994 as both are provisional in nature and their objections or representations are not decided by the defendant - Board. However, the defendant - Board is directed to finalise the seniority list after inviting the objections or representation from the aggrieved parties as soon as possible as the seniority lists of 04/10/1985 and 07/01/1994 are required to be finalised as early as possible. 13. In view of the above, the following order is passed: O R D E R The appeal is partly allowed. The defendant – Board is restrained from making recovery of any amount from the salary of the appellants. In case any amount is recovered from the appellants the same shall be refunded to the appellants. However, it is clarified that the appellants shall not be entitled to claim any additional benefit whatsoever during the period they have worked except the salary which was paid to them. The challenge with regard to seniority lists of 04/10/1985 and 07/01/1994 has not substance as the seniority list is provisional in nature, therefore, the same is unsustainable with a direction to the Board to finalise the seniority list as early as possible. (H.B. ANTANI, J.) siji