SCA/759420/2008 2/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7594 of 2008 ========================================================= LAXMANBHAI KAVJIBHAI BHAGORA - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR BS BRAHMBHATT for Petitioner(s) : 1, MS KRINA CALLA, ASST GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1,3 - 4. MR RITURAJ M MEENA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 24/09/2008 ORAL ORDER
1. Heard
learned counsel for the parties.
2. By
way of this petition, the petitioner has prayed to direct the
respondents to grant deemed date to the petitioner as 06.09.1993 in
the post of Divisional Accountant and thereby direct to grant all
other consequential benefits.
3. The
petitioner was appointed on 14.06.1976 as Jr. Clerk in the respondent
department and was by way of promotions was made the Dept. Accountant
on 04.07.1988. The petitioner was promoted to the post of Divisional
Accountant on 29.11.1996. After receiving the promotion, the
petitioner demanded deemed date as 06.09.1993 vide application dated
03.07.1997. The request of the petitioner was denied vide reply
dated 30.06.2006. Thereafter, on 07.10.2006, the petitioner again
made a detailed representation but the same also came to be rejected.
Being aggrieved by the said action, the present petition has been
preferred.
4. Mr.
Brahmbhatt, learned advocate appearing for the petitioner has
submitted that the petitioner has completed 30 years of service in
the respondent department and that the employees junior to the
petitioner were considered for promotion. He has submitted that the
petitioner is demanding the deemed date from the respondents but time
and again the same reply is forwarded to the petitioner.
5. Ms.
Calla, learned AGP appearing for the respondent authorities has
supported the stand of the respondent authority and has submitted
that this petition is not maintainable as at the first place itself
there is an inordinate delay by the petitioner in preferring this
writ petition. She has submitted that the petitioner is claiming the
benefits of the year 1993 in the year 2008 and the same should not be
entertained by this court in view of the decision of the Apex Court
in the case of Shiv Dass vs. Union of India & Ors. reported in
AIR 2007 SC 1330.
5.1 Ms.
Calla has further submitted that as
per the Government Resolution dated 30.03.1970, while giving deemed
date to any of the employees, a number of parameters are required to
be seen. These parameters include the difference between the current
designation and from the immediate designation from where he is
required to be given promotion as well as his C.R and any proceedings
which may be pending against him.
5.2 Ms.
Calla has also submitted that the seniority list of both the zones
i.e. Saurashtra zone and Gujarat zone are maintained separately and
therefore the promotion from the deemed date could have been granted
to the petitioner only if a junior from Gujarat Zone would have
superseded the petitioner.
6. This
Court has perused the documents placed on record by both the sides.
As a result of hearing and perusal of records, it is clear that the
In this regard, it will be relevant to peruse decision of the Apex
Court in the case of Shiv Dass (supra) wherein the
Apex Court relying upon the decision reported in AIR 1987 SC 251 has
upheld the view that if there is inordinate delay on the part of the
petitioner and such delay is not satisfactorily explained, the High
Court may decline to intervene and grant relief in exercise of its
writ jurisdiction. It was stated that this rule is premised on a
number of factors. The High Court does not ordinarily permit a
belated resort to the extraordinary remedy because it is likely to
cause confusion and public inconvenience and bring in its train new
injustices, and if writ jurisdiction is exercised after unreasonable
delay it may have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was pointed
out that when writ jurisdiction is invoked, unexplained delay coupled
with the creation of third party rights in the meantime is an
important factor which also weighs with the High Court in deciding
whether or not to exercise such jurisdiction.
7. As
a result of hearing and perusal of records, it also appears that the
petitioner has been comparing himself with the promotion of another
individual who was posted in Saurashtra Zone. The question of giving
promotion from the deemed date does not arise as the petitioner has
not been superseded by a junior in Gujarat Zone and that the
promotion from the deemed date could have been granted only if a
junior from Gujarat Zone would have superseded the petitioner in
order to avoid any injustice to the petitioner. On this ground also,
granting the prayer of the petitioner would amount to chaos within
the board as the very purpose of maintaining separate lists would be
frustrated and the same would affect hundreds of other employees.
8. In
view of the above, this Court is not inclined to grant the prayers
prayed for in the present petition at such a belated stage more
particularly when there is no merits in the same. No interference is
caused in the present petition and the same requires to be dismissed.
For the foregoing reasons, petition stands dismissed. No order as
to costs.
(K.S.
JHAVERI, J.)
Divya//