FRANKLIN VALABHAI SHAW & ORS vs STATE OF GUJARAT & ORS

Challenge in this petition is made to the seniority list of the cadre of Deputy Mamlatdar dated 07.02.2015.

Mr.A.K.Clerk, learned advocate for the petitioners has submitted that the petitioners are working as Deputy Mamlatdar in Mehsana District. It is the grievance of the petitioners that the persons who should have been shown as Junior to the petitioners, are shown senior to them, in the impugned seniority list dated 07.02.2015. To make this point good, learned advocate for the petitioners has given various statements / tables to this Court. On the basis of the said material, essentially comparison is made with the Deputy Mamlatdars of Patan District. It is submitted that, prior to the year 1996, Patan District was part of the Mehsana District. All the petitioners are senior to the persons with whom the comparison is made, on at least three counts. It is submitted that, (i) the date of joining as Clerk, (ii) the date of passing Lower Revenue Qualifying Examination (the Departmental Examination) and (iii) the date of getting the first Higher Grade Scale - on all these three counts, these petitioners are senior. It is further submitted that, it is the case pleaded in the petition that, at the time of bifurcation of the Mehsana District, no option was asked for by the Authorities, as to whether the petitioners intend to continue with Mehsana District or intend to go to the Patan District and under those circumstances, the petitioners continued with the Mehsana District. It is submitted that, those who were allotted to Patan District got earlier promotion as Deputy Mamlatdar and on those fortuitous circumstances, they should not be treated to be senior to the petitioners. Learned advocate for the petitioners has tendered a copy of the seniority list dated 23.10.2000 to further strengthen this comparison. It is submitted that the impugned seniority list therefore, needs to be quashed and set aside.

Learned advocate for the petitioners has further submitted that, as per the administrative requirement, some of the petitioners were promoted on the post of Deputy Mamlatdar, thereafter they were reverted, again promoted, again reverted and after some time, they are working continuously on the post of Deputy Mamlatdar. It is submitted that, it is the date of the first promotion on the post of Deputy Mamlatdar which should be considered as the relevant date for the purpose of considering seniority in the cadre of Deputy Mamlatdar. It is submitted that, the impugned seniority list be quashed and set aside and those persons with whom the comparison is being made, be shown junior to the petitioners.

1 Ms.Manisha Shah, learned Government Pleader has vehemently opposed this petition. It is submitted that false averments are made in the petition on material facts. It is further submitted that, the very foundation of the petition is mischievous and therefore this petition be dismissed on that count alone. Learned Government Pleader has made available to this Court copy of the option form of each of the petitioners to point out that each petitioner had given in writing at the relevant time that he intends to continue with Mehsana District and is not willing to go to the establishment of Patan District. The copies of these declarations, of each petitioner is already given to the learned advocate for the petitioners. 4.2 It is further submitted on behalf of the State that, even on merits, the petitioners do not have any case. It is submitted that even if the foundation of the petition is accepted as it is, it is to the effect that, the promotion of the persons in Patan District, as Deputy Mamlatdar earlier to the petitioners, is illegal. It is submitted that said promotions are not challenged by any of the petitioners at any point of time. It is submitted that without challenging the said promotions, to contend that those persons be not granted seniority, can not be accepted and such a demand needs to be rejected. 4.3 It is further submitted that, the argument of the petitioners that, they should be granted seniority from the first date of adhoc promotion, can not be accepted since subsequently they were reverted for administrative reasons. It is submitted that for some administrative exigency, for some time, promotions were given on purely adhoc basis and on that exigency being over, that adhoc promotion was withdrawn.

Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under. 5.1 The very foundation of this petition, which is by the Deputy Mamlatdars working in the Mehsana District is that, at the time of bifurcation of the Mehsana district, the petitioners were not given any option to go to Patan district and consequently those who were allocated to Patan District got early promotions and seniority over the persons, who continued in Mehsana District.

5.2 The averments in the petition read as under.

"2. The relateable facts leading to the filing of the captioned Special Civil Application are as under.

2.1 The petitioners herein are the people who were initially recruited as clerk when Mehsana and Patan District was the joint District. And, when the said Mehsana and Patan came to be two separate District, at that time, no option was given to the petitioners for choosing their place of work i.e., Whether the Petitioners wished to work in Mehsana District or the Patan District and thus, the Petitioners remained at the place they were actually working at that point of time. Meaning to say that those people who were working in Mehsana remained in Mehsana and those people who were working at Patan remained in Patan. ........"

5.3 Learned Government Pleader has made available to this Court copy of the option form of each of the petitioners to point out that each petitioner had given in writing at the relevant time that he intends to continue with Mehsana District and is not willing to go to the establishment of Patan District. The copies of these declarations, of each petitioner is given to the learned advocate for the petitioners. Learned advocate for the petitioners is not in a position to dispute this factual aspect.

5.4 From the above, it is clear that the petitioners have made false statement on oath before this Court on material factual aspect. This petition therefore needs to be dismissed only on this count. Even if this aspect is not stretched further, it can not be disputed that the very foundation of this petition goes off and therefore the petitioners can not be granted any relief.

5.5 On merits also, this Court finds that, the petitioners would not be entitled to any relief. It is for the following reasons. The submission of learned advocate for the petitioners is that, they should be given seniority from the date of their first promotion. This pre-supposes that the petitioners are promoted more than once. It would also mean that, after the first promotion, they are reverted also. The said reversion was not by way of punishment but because the purpose for which adhoc promotion was given was over. Such purpose could be for scarcity work etc. The concept of continuous officiation would not mean that though the promotion is not continuous, the seniority should be counted from the first date. As the word itself indicates the continuous officiation means the date from which the concerned person is holding the post continuously. The case of the petitioners on merits thus goes against the proposition of law and on that count their contention needs to be rejected on merits. At this stage, reference needs to be made to the decisions of the Supreme Court of India in the case of Direct Recruit Class II Engg. Officers Association Vs. State of Maharashtra reported in (1990) 2 SCC 715 which is subsequently interpreted by the Supreme Court in the case of and State of West Bengal Versus Aghore Nath Dey and others reported in (1993) 3 SCC 371, which in this fact situation would apply against the petitioners.

5.6 In totality this Court finds that for more than one reasons this petition needs to be dismissed. Firstly there are false statements on material facts, secondly the very foundation of the petition goes off and even on merits the claim of the petitioners is unsustainable in law. This petition therefore needs to be dismissed.

5.7 While dismissing this petition, it needs to be clarified that the petitioners would be entitled to the seniority on the basis of continuous officiation as promotee Deputy Mamlatdars, keeping in view the judgment of this Court of today''s date recorded on Special Civil Application No.4800 of 2015 and cognate matters, and the demerits on the part of the petitioners would not come in their way in getting the relief to the extent other promotee Deputy Mamlatdars are granted by this Court.

For the reasons recorded above, the following order is passed. 6.1 This petition is dismissed.

6.2 While dismissing this petition, it is clarified that the petitioners would be entitled to the seniority on the basis of continuous officiation as promotee Deputy Mamlatdars, keeping in view the judgment of this Court of today''s date recorded on Special Civil Application No.4800 of 2015 and cognate matters, and the demerits on the part of the petitioners would not come in their way in getting the relief to the extent other promotee Deputy Mamlatdars are granted by this Court.

6.3 Rule is discharged. No order as to costs.