JUDGMENT
P.B. Majmudar, J.
1. By filing this petition, the petitioner has challenged the final seniority list published by the department on 18-5-1984 which is at Annexure-B to this petition and the corrected list dated 2-1-1985, which is at Annexure-C to the petition.
2. According to the petitioner, he was initially appointed on 26-7-1966 as a Junior Engineer in the Public Health Engineering Wing. Thereafter, he was promoted on 17-7-1971 to the post of Deputy Engineer and was posted at the Design Circle, R & B Department on deputation. Subsequently, he was reverted to the post of Junior Engineer and was posted in his parent cadre at Gandhinagar. As per the averment in the petition, the petitioner was again promoted as Deputy Engineer and was posted at Baroda on 21-1-1972. In the meanwhile, the department has published a provisional seniority list on 29-2-1980 in connection with the employees working as Deputy Engineers (Civil). According to the petitioner, he was shown at serial No.48 in the said seniority list and the respondent No.2 was shown at serial No.43. The petitioner made certain representations against the aforesaid list as according to him, he was required to be shown senior as compared to respondent No.2. According to the petitioner, respondent No.2 was initially appointed as Engineer in the Public Works Department, which according to the petitioner is a separate cadre altogether. Initially the Public Works Department constituted of three categories, viz., Road & Building, Irrigation and Public Health Engineering. However, in October 1964, Public Health Engineering Wing was bifurcated from the Public Works Department and, therefore, the Public Works Department consists of only two cadres R & B and Irrigation, and Public Health Engineering Wing was bifurcated. According to the petitioner, the respondent No.2 was appointed on 15-4-1966 as Junior Engineer in the Public Works Department after its bifurcation from Public Health Engineering Wing. But he was subsequently absorbed in the Public Health Engineering Wing after being declared surplus in his parent department. According to the petitioner, the respondent No.2 was, therefore, required to be shown junior to him and at the bottom of the list maintained by the Public Health Engineering Wing. On these and such other grounds, objections were lodged by the petitioner regarding the provisional seniority list. It seems that, in the meanwhile, the department published another seniority list for the employees working on the post of Deputy Engineer and the petitioner was placed at serial No.53 while the respondent No.2 was placed at serial No.83. Subsequently, the department declared the final seniority list, wherein the petitioner was shown at serial No.44 while the respondent No.2 was shown at serial No.40. The said list is annexed at Annexure-B. Subsequently, as per the averment in the petition, some correction orders were issued by the department and vide order dated 2-1-1985, the petitioner was further pushed down and was shown at No.55 and respondent No.2 was shown at serial No.43, vide order produced at Annexure-C. Being aggrieved by the said order, the petitioner has approached this Court by way of the present petition on the ground that the petitioner was required to be shown senior to the respondent No.2. According to the petitioner, services rendered by respondent No.2 in earlier department should not be counted for the purpose of seniority in the present department.
3. The main grievance of the petitioner is that the respondent No.2 entered in the Public Health Engineering Department for the first time on 13-9-1968 and at that time, the petitioner was already working in the said department since 26-7-1966. On the aforesaid ground, it is prayed by the petitioner the he is required to be shown senior to the respondent No.2.
4. It seems that the present petition was clubbed for hearing with another petition, being Special Civil Application No.2012 of 1992, which was filed in a representative capacity against the said seniority list. The said matter was placed before a Division Bench, along with the present petition, for hearing. However, the Division Bench of this Court, vide its order dated 28-11-2001, came to the conclusion that the question of individual case of the petitioner regarding seniority is required to be heard by a Single Judge. Accordingly, this matter is placed before this Court for disposal.
5. During the pendency of this Special Civil Application, which is filed as back as in the year 1985, the petitioner has already retired on attaining the age of superannuation. Not only that, in the meanwhile, the petitioner was also promoted to the post of Executive Engineer, Superintending Engineer as well as Chief Engineer and ultimately has retired as Chief Engineer on 31st August 2000. In view of the aforesaid events, regarding giving three promotions to the petitioner, the petitioner amended this Special Civil Application with a prayer that the petitioner is required to be given deemed date of promotion as Chief Engineer with effect from May 1996 and all consequential benefits are required to be given to him, as if he was promoted as Chief Engineer with effect from May 1996 and accordingly his retiral dues are required to be given on that basis. The said averment is also incorporated in the main petition.
6. On behalf of the department affidavit-in-reply has been filed challenging the said petition. Regarding the averment of the petitioner about the cadre of Junior Engineer in Public Works Department being a separate cadre from the Public Health Engineering Wing, it is stated by the department in para 8 of the reply as under:
“8. With reference to para 2.6 of the petition that the petitioner says that the cadre of Jr.Engineer in Public Works Department is a separate cadre from the cadre of Public Health Engineering Wing which is not correct. The recruitment rules for the appointment of Jr.Engineer are same in both departments. The respondent No.2 Shri C.A.Doshi was transferred in the interest of Public Service from Public Works Department to Public Health Engineering Wing through the Selection Committee for appointment of Jr.Engineers of Government of Gujarat, Public Works Department against demand of the Superintending Engineer, Public Health Circle, Rajkot. Keeping his seniority intact, and subsequently the same has been decided by Government in Public Health Engineering Department. No such parallel Selection Committee for appointment of Jr.Engineer in Public Health Engineering Wing was exist at that time. In such case the persons transferred from one Department to another bifurcated department through the Selection Committee in the interest of Public Service, the service seniority rights of transferring person reserved from his date of joining in Government Department as per instructions issued by Government. The seniority of a Government servant is fixed on pay at the time of appointment only.
The petitioner has incorporated a copy of the order No.EB/2-3/39 of 68, dated 30/9/1968 of S.E., P.H.Project Circle, Rajkot in Annexure-A of Special Civil Application No.357 of 1985. This copy of the order is not correct. The first of all the office of the Superintending Engineer, Public Health Project Circle, Rajkot was not existing at that time. Secondly, the petitioner has intentionally omitted an important sentence of “The seniority of these persons will be decided hereafter as per Government orders”. Ahead of the signature of the Superintending Engineering. A copy of the original order of the S.E., P.H.C., Rajkot No.EB/2-4/139, dated 30/9/1968 is attached vide appendix-No.B.
It is hereby pointed out that the Junior Engineers were not joining in the P.H.E. Wing specifically during the period 1964 to 1969. The numbers of post of Junior Engineers have been vacant in P.H.E. Department since its bifurcation from P.W.D. i.e. year 1964. The respondent No.2 Shri C.A.Doshi had been transferred to P.H.E. Department as per demand of the S.E., P.H.Circle, Rajkot, through the Selection Committee of Junior Engineers in Government of Gujarat P.W.Department. In addition to this, Shri Doshi had not been asked by the Government to opt for service in P.H.E. Department on same post of Junior Engineer. The transfer order of Shri Doshi had been made in Public Service interest with the clarification that the seniority of transferring persons will be decided hereafter as per government orders.
As stated above, the seniority rights of respondents No.2 had been clarified in his detailed posting order. Subsequently, the Superintending Engineer, Public Health Circle, Rajkot had published seniority of Jr.Engineer/ Supervisor/Overseer – fixing of – due to separate seniority from P.W.D. of Junior Engineers/Supervisors/Overseers working in this Circle as on 1/1969 vide Confidential order No.EB/11-4/3449, dated 5/7/1969, in which the seniority of respondent No.2 has been considered as per his date of joining as temporary junior Engineer in P.W.Department, i.e. from dated 15/4/1966, specifying that Shri C.A.Doshi has been taken up from P.W.D. surplus. The Government in Panchayat & Health Department has published number of provisional and final seniority of Junior Engineers and Deputy Engineers in which the seniority of respondent No.2 also considered from his date of joining as temporary Junior Engineer in P.W.Department, i.e. from dated 15/4/1966 and also promoted as Deputy Engineer earlier than the petitioner. The details for date of promotion shown in point 2.4 as above.”
7. In para 9 it is pointed out by the department that there were number of mistakes in the provisional seniority list published on 18-3-1982, which are highlighted in a tabular form in para 9 of the reply. It is also averred in the reply that the seniority list of 18-3-1982 has been challenged before the High Court by three employees and the High Court directed not to operate the said seniority list dated 18-3-1982 during the pendency of the petition. It is also averred in the reply that the department, having realised the said mistake, modified the final seniority list and ultimately published final seniority list on 10-1-1985, wherein the representation of the petitioner was also considered by the Government.
8. Having considered the averments made in the petition as well as having considered the affidavit-in-reply, in my view, the department is able to justify the say about placing the respective names of the petitioner and respondent No.2 at appropriate places in the final seniority list. The respondent No.2 was transferred in public interest and, therefore, earlier services rendered by him cannot be wiped out altogether, for the purpose of seniority in the present department. After considering various objections against the said provisional seniority list, ultimately, the department published final seniority list and, therefore, the main prayer of the petitioner for setting aside the final seniority list which is at Annexure-B cannot be granted as the same is prepared by the department in an appropriate manner, considering the seniority of respondent No.2 even in his earlier department.
9. It is an admitted fact that subsequently the petitioner was promoted from time to time. It is not in dispute that the respondent No.2 was transferred to the Public Health Engineer Wing from Public Works Department through selection committee for appointment as Junior Engineer of Gujarat Government, Public Works Department, keeping the seniority intact. If an employee is transferred from one department to another department in view of the bifurcation of the department and after undertaking the process through the Selection Committee, in the public interest, the services of such employee cannot be wiped out totally. In that view of the matter, it cannot be said that the department has committed any illegality in protecting seniority of the respondent No.2 while transferring him to the present department. Therefore, I do not find any substance in the main prayer. So far as prayers which are taken by amendment are concerned, it is required to be noted that both the petitioner and the respondent No.2 were promoted as Executive Engineer in May 1985 and the present petitioner was promoted as Superintending Engineer on 19th May, 1993 while the respondent No.2 was promoted on 9-3-1993 on the said post. Ultimately, the petitioner was promoted as Chief Engineer on 4th January, 2000. As against that, the respondent No.2 was promoted as back as on 5th May, 1998, while the amendment was filed in 2001. The petitioner has never tried to challenge the aforesaid promotion of the respondent No.2 for a considerable time. Instead, the petitioner has waited for his own turn and ultimately, he was promoted as Chief Engineer and at that stage, he has decided to challenge the promotion of the respondent No.2 after a considerable delay. When the respondent No.2 was given promotion, he was even otherwise entitled to get the same and was rightly given promotion earlier to the petitioner. It is required to be noted that the respondent No.2 was promoted as a Superintending Engineer on 9-3-1993 as averred in the petition by way of amendment. However, even as per the averment in the amendment, the respondent No.2 was eligible to be promoted on 9-11-1993 but since some inquiry was pending against him, he was ultimately promoted as Superintending Engineer from 9-11-1995. It is the say of the petitioner that since at the relevant time, the respondent No.2 has not completed three years continuous service as Superintending Engineer, he could not be promoted as Chief Engineer on 5-5-1998, as he would have completed three years only after 9-11-1998. However, it is required to be noted that the respondent No.2 was given deemed date as per the say of the petitioner himself and all throughout the petitioner remained silent and not challenged the aforesaid promotion order of respondent No.2 as Chief Engineer, which was passed on 5-5-1998 and after receiving the benefit of promotion with effect from 4-1-2000, ultimately, he has decided to challenge the promotion of respondent No.2. As the respondent No.2 was promoted on 9-3-1993, he was eligible to be promoted as Chief Engineer in May 1998. Now, the petitioner has already retired and he has already taken his retiral dues, and therefore, I do not find any substance in the main prayer of the petition. Equally, I do not find any substance even in prayer which have been made by way of amendment, challenging the promotion of respondent No.2, as the challenge is grossly belated and otherwise also it cannot be said that respondent No.2 was not eligible to be promoted on the post of Chief Engineer with effect from 5-5-1998.
10. Therefore, I do not find any substance in this petition and the same is rejected. Rule is discharged with no order as to costs.