YOGESHKUMAR HARIPRASAD BHATT v. STATE OF GUJARAT

2. The respondent-State has filed its reply in Special Civil Application No.11951 of 2011. However, as the subject matter of both these petitions is same, i.e. regarding deemed date of appointment, both the matters are taken up for joint hearing and disposal.

3. Learned Advocate for the petitioner contended that in the selection procedure, the petitioner had appeared and after due selection procedure, was placed in the select list at Sr. No.3. It is submitted that the candidates whose names appeared at Sr. Nos.1 and 2 were given appointment orders with effect from 18.02.1993. However, the petitioner at the relevant time was not given any appointment order. However, subsequently, by appointment order dated 04.03.1999, the petitioner was appointed. It is submitted that as the petitioner had participated in the same selection process, were number seats available were 4 and as the petitioner was at Sr. No.3, the petitioner also should have been given appointment along with candidate at Sr. Nos.1 and 2 in the year

1993.

3.1 It is submitted that though the petitioner had participated in the same selection process as other candidates who are appointed in the year 1993, yet for no reason, the petitioner was not appointed along with them, but was appointed almost after 6 years later and therefore, injustice is caused to the petitioner for

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which the petitioner is required to be given deemed date of appointment with effect from 1993.

3.2 Learned Advocate for the petitioner submitted that the petitioner was not given appointment on account of austerity measures and due to which, the Government had placed cut of 10% of the seats. However, such policy of the Government of cutting down 10% seats would not be applicable as the selection procedure had commenced even prior to the date on which policy was declared.

3.3 Learned Advocate for the petitioner relied upon decision of the Apex Court in case of C.Jayachandran Vs. State of Kerala & Ors., reported in (2020) 5 SCC, 230 and particularly relied upon para-41 of the judgment.

3.4 Learned Advocate for the petitioner thereafter relied upon decision of this Court in case of Baraiya Liladhar Gagarambhai Vs. State of Gujarat & Ors., in Special Civil Application No.12387 of 2013 dated 15.07.2014, to submit that the petitioner also deserved to be given appointment on the very day on which other persons were given appointment order.

4. As against this, learned AGP opposing the petitions submitted that the present petitioner was appointed as Stenographer Grade-III on 04.03.1999 at the office of the Deputy Collector, Surendranagar. In the appointment order of the

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petitioner, it was clearly mentioned that his appointment is made under Government resolution of 10% cut in posts. Therefore, contention of 10% cut would not be applicable in the case of the petitioner is baseless.

4.1 It is submitted that the present petitioner was superannuated on 31.10.2017. The grievance of the petitioner is that by Government resolution dated 28.10.1991 passed by the Finance Department, inter alia, there was cut of 10% of posts in every department of the State of Gujarat.

4.2 Learned AGP also taken this Court through the policy of the State Government declared under Government resolution dated 28.10.1991, wherein by way of austerity measures, there was cut of 10% of the posts.

5. Having considered the rival submissions of learned Advocates for the parties and having perused documents on record, it appears that the petitioner had appeared in the selection procedure of Stenographer Grade-III in the office of the Collector, Surendranagar. In the year 1991, there were total 4 posts of General and 1 post of ST for Stenographer Grade-III in the office of the Deputy Collector, Surendranagar. For the post of Stenographer, no ST category person had applied. Therefore, General category candidates were given appointments as per Government resolution dated 28.10.1991. There were total 5

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persons of General category appointed. All selected candidates were given appointments as per Government resolution dated 28.10.1991. Therefore, appointments are given late to all candidates. The 5 candidates were given appointments as under:-

5.1 Thus, from the above table, it appears that each appointment was given after grant of establishment from the Revenue Department. Therefore, all selected candidates were given late appointments with 10% cut in posts.

6. The very issue was raised by the petitioner before the Revenue Tribunal in Appeal No.29 of 2010 claiming that the date on which candidate at Sr. Nos.1 and 2 were given appointments as Stenographers, the petitioner be given same deemed date of appointment. The said claim of the petitioner was rejected by order dated 17.06.2015. While doing so, the Tribunal has assigned reasons as under:-

"7) No right to seek relief as prayed in the appeal arises on the basis of the letter dated 19/03/2009 cited by the Learned Advocate for the appellant. It is remarkable that the opponent no.2 has been informed

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by the Letter dated 28/07/2008 of the Revenue Department, Government of Gujarat that there is no provision regarding to approve the date of appointment of Senior as Deemed Date. Hence, the proposal of the appellant to approve Deemed Date is not allowed in consultation with the General Administration Department. Thus, the Revenue Department has clearly informed regarding no provision to approve the date of appointment of Senior as Deemed Date prior to the letter dated 29/03/2009 of the opponent no.2. In addition, in the case of the appointment, the appellant failed to show the provision that the Junior Employee can be granted as a Deemed Date in the date of appointment of the Senior. The appellant failed to produce the provision of any circular or rules or the judgment of the Hon'ble Supreme Court or Hon'ble High Court in this matter and as there is no provision of any circular or rules or the judgment of the Hon'ble Supreme Court or Hon'ble High Court to grant a Deemed Date for the junior in the date of appointment of the Senior, present appeal is not tenable and therefore, as this appeal is liable to be rejected, final order is passed as under:

// ORDER // The Appeal of the appellant is hereby rejected."

7. Insofar as reliance placed by learned Advocate for the petitioner on the decision of the Apex Court in case of C.Jayachandran (supra) is concerned, it would be pertinent to observe that before the Apex Court challenge was to the grant of

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grace marks to the candidates who were appointed on a particular date and accordingly, the petitioner therein had sought the same date of appointment on the ground that grant of moderation of marks was unsustainable and holding as such, the High Court had directed to re-cast select list. It is in such fact situation that the Apex Court found that the appellant before the Apex Court was wrongfully excluded from the process of appointment on account of illegal and arbitrary grant of moderation of marks and thereby was pushed down in the seniority list. In this fact situation, in para-41, the Apex Court held as under:-

"41. Still further, the Division Bench of the High Court has completely erred in law in holding that the appellant has delayed the challenge of his appointment vide order dated 22nd December, 2010. The appellant was appointed pursuant to a direction issued earlier by the Division Bench. The Division Bench has directed to re-cast the select list and in such select list, the name of the appellant appears at Sl. No. 3 and that of Badharudeen at Sl. No. 4. The appellant has submitted the representation on 11th April, 2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18th September, 2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30th March, 2009. The appellant having been factually appointed

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vide communication dated 22nd December, 2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process."

8. In the decision of this Court in Special Civil Application No.12387 of 2013, the differentiating factor is that in this petition, case of the petitioner was that the candidate, who were less meritorious, were given appointments ahead of the petitioner and therefore, by accepting the fact of the other candidates being less meritorious, the petitioner therein was given deemed date of appointment equivalent to the date of less meritorious candidates. In the present case, however, claim of the petitioner cannot be entertained as the petitioner was borne in the cadre on the date of his appointment, i.e. 04.03.1999. At the time when the process was underway, Government resolution dated 28.10.1991 was in operation and as is available on record, appointment in the year 1999 was also given in consonance with the provisions of the very same Government resolution after getting prior sanction from the Department for appointment of the petitioner.

9. The petitioner was appointed in the year 1999. However, at the relevant time, there does not appears to be any agitation by the petitioner with regard to his date of appointment. The petitioner has now retired upon attaining age of

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superannuation on 31.10.2017 and for the first time, prior thereto, in the year 2015, petition was filed before this Court which was disposed of by order dated 04.11.2015 with a direction to make representation.

10. In view of the aforesaid, in the opinion of the Court, no case is made out to grant deemed date of appointment. Both the petitions therefore deserve to be and are hereby dismissed. Notice is discharged. No order as to costs.

(A.Y. KOGJE, J)

SHITOLE

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