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SCA/4548/1998 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4548 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=============================================
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 ?
=============================================
NATWARLAL
AMBALAL PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=============================================
Appearance
:
MR PS PATEL for Petitioner(s) :
1,
GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
M/S PATEL
ADVOCATES for Respondent(s) : 1,
RULE SERVED for Respondent(s) :
3,
MR PRADEEP PATEL for Respondent(s) :
4,
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 29/04/2010
ORAL
JUDGMENT
1. The
petitioner has prayed for a direction to quash and set aside the
promotion order issued by respondent no.1 on 30th April
1998 to respondent no.4 on the post of Assistant Professor in Textile
Technology in L.D. College of Engineering and to give promotion to
the petitioner on the said post.
2. The
petitioner has cleared his B. Txt Tech. Examination from M.S.
University, Baroda in the year 1970 with 63% marks. He joined as
Assistant Lecturer in Weaving in R.C. Technical Institute at Saraspur
in the year 1972. Thereafter, he joined as Assistant Lecturer in
Textile in Bhavshinhi Polytechnic, Bhavnagar ande at his request he
was transferred to R.C. Technical Institute in the year 1976.
3.
The respondent no.2 vide order dated 21st June 1978
appointed the petitioner by nomination as Assistant Lecturer in
Textile Technology at L.D. College of Engineering, Ahmedabad in the
U.G.C. Scales of Rs. 65-1040/-. Thereafter, he was promoted to the
post of Lecturer in Textile Technology on ad-hoc basis. In the year
1981 along with others the petitioner was sent to Indian Institute of
Technology at Delhi for training for M. Tech. From 27.7.1981 to
26.7.1983. The respondent authorities issued Resolution dated 9th
December 1982 and 26.2.1983 upgrading the post of Assistant Lecturer
to the post of Lecturer in the scale of Rs. 700-1600/- and the
petitioner was upgraded with effect from 1.4.1979. Thereafter vide
circular dated 3.9.1983 the respondent no.2 has published Final
Seniority List of Assistant Lecturer as on 1.1.1981. The said list
was finalized and the name of petitioner was shown at serial no.1. In
the said list Shri Gunwantlal Chhanganlal Bhahmbhatt was shown at
serial no.3 because the petitioner had joined the service on 1.7.1978
and the said Mr. Bhahmbhatt had joined the service on 22.4.1979.
4. The
respondent no.2 by Circular dated 7.7.1992 issued Provisional
seniority list as on 1.1.1986 as Lecturer in Textile Technology. It
was mentioned therein that the final seniority list dated 10.3.1989
is already issued and the seniority of the Officers mentioned in the
said seniority list will remain as it is and they are not allowed to
file their objections. In this list the petitioner was shown at
serial no.1 and Mr. Bhahmbhatt was shown at serial no.4. Thereafter,
the respondent no.1 has issued Final Seniority list by Circular dated
17.4.1996. In the said Final seniority list the petitioner was placed
at serial no.4 instead of serial no.1 and the said Mr. Bhahmbhatt was
placed at serial no.3. Petitioner made representation s to the
respondent authorities. The respondent no.3 vide office Note dated
14th December 1996 informed the petitioner that the Head
office has not accepted his representation and it was filed.
Petitioner made further representations. During the pendency of
representation the respondent no.1 promoted Shri Brahmbhatt. Under
the circumstances the present petition has been filed.
5. Learned
Advocate for the petitioner has submitted that the petitioner was
sent for QIP Training and during the said training his seniority
should not have been affected even if junior is given promotion.
According to him in most of the provisional seniority list he was
shown as senior and in the last list nobody was allowed to raise
objections and without giving opportunity of hearing the respondent
no.1 has changed the seniority and the petitioner was placed below
Mr. Brahmbhatt which is quite illegal and arbitrary.
6. Learned
A.G.P. Appearing for the respondent submitted that the respondent
authority has rightly fixed the seniority list and the petitioner
cannot have any grievance about the same and therefore, the petition
deserves to be dismissed.
7. I
have heard the learned advocates for the parties at length and
perused the relevant record. From the record it is found that the
petitioner was offered promotion as Lecturer in Textile Technology in
the year 1981, but the petitioner did not accept the same and opted
for deputation for higher studies at New Delhi. As per the prevailing
rules it was not permissible to have both i.e. to go for training and
also to get promotion. The petitioner opted for higher studies.
Therefore, the said Brahmbhatt was given promotion in the year 1981
as Lecturer and he assumed charge thereof.
8.
It is also required to be noted that after returning from the
training, the Government issued Government Resolution on 9.12.1982
which envisaged that the Assistant Lecturer who has reached the scale
of Rs. 700/- and who fulfills academic qualification and experience
prescribed for the post of Lecturer, then all the Assistant Lecturer
are eligible to become lecturers, the the petitioner accepted
upgradation as Lecturer from 1.4.1979. The petitioner was in fact
drawing salary in the scale of Rs. 810/- on 1.4.1979 and if he
accepted the scheme of upgradation he was likely to draw salary more
than the basic pay. In the year 1982 he was having basic salary of
Rs. 900/- approximately and if the petitioner accepted upgradation
from 1979 he was likely to get more than Rs. 950/- approximately
after adjusting the basic pay in the scale of Rs. 700-1600/- from
1.4.1979. Likewise the said Mr. Brahmbhatt was also asked for option
for accepting upgradation, but he refused to get the post of Lecturer
by upgradation because at the relevant time he was already working as
Lecturer.
9. It
appears that the petitioner ought to have accepted promotion when
offered in the year 1981 and he should not have gone for upgradation
in salary from 1.4.1979 and become lecturer by upgradation as back as
in 1982. The petitioner could not have got both i.e. going for
training and also promotion. On coming back after training it was not
open to him to maintain his seniority over others who have either
become Lecturers by promotion or those who are selected through
G.P.S.C. as lecturer.
10. It
is also required to be noted that one Shri R.J. Joshi was appointed
as Lecturer on 23.12.1960 as direct recruit and was promoted as
Assistant Professor in the year 1983. At that time the petitioner did
not claim his right to be promoted as he was about his position in
seniority due to accepting promotion as Lecturer by upgradation. Even
though Mr. Joshi was appointed after the petitioner was appointed,
the petitioner could not claim seniority over him.
11. In
view of the above position I am of the opinion that the petitioner
has failed to make out a case for the reliefs claimed in this
petition. The petitioner is therefore dismissed. Rule is discharged
with no order as to costs. Interim relief, if any, stands vacated.
[K.S.JHAVERI,J.]
pawan
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