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SCA/16114/2005 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16114 of 2005
==============================================================
N.M.
JOSHI & 2 - Petitioner(s)
Versus
STATE
OF GUJARAT THRO' ADDL. CHIEF SECRETARY & 5 - Respondent(s)
==============================================================
Appearance
:
MR
MUKUL SINHA for
Petitioners
MR NAGESH SOOD AGP for Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) : 5 - 6.
MR DA BAMBHANIA for
Respondent(s) : 2, 3 &
4,
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CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
Date
: 18/10/2005
ORAL
ORDER
Heard
the learned advocates.
Learned
advocates agree that pending this petition, the respondent no.6-Mr.
D.G Mistri has passed away. Leave to delete the respondent no. 6 from
the cause title of the petition.
Rule.
Learned AGP Mr. Sood and Mr. Bambhania waive service of rule on
behalf of the respondent no.1 and the respondents nos. 2 to 4
respectively.
The
subject matter of challenge in this petition is the seniority list of
Assistant Conservators of Forests as on 1st January, 2005
published on 30th June, 2005. The grievance of the
petitioners is with respect to their position in the said seniority
list vis-a-vis the respondents nos. 2 to 5. Mr. Sinha has
submitted that the petitioners are senior to the respondents nos. 2
to 5. The petitioners entered Class-III service as Range Forest
Officers years before the concerned respondents were appointed as
Range Forest Officers. The petitioners were promoted as Assistant
Conservators of Forests in the years 1984 and 1986 i.e long before
the concerned respondents were so promoted in the years 1988 and
1989. Since then, the petitioners have been further promoted as
Deputy Conservators of Forests in the years 1997 & 2003. At no
point of time, the petitioners’ promotion as Assistant Conservators
of Forests or as Deputy Conservators of Forests was under challenge
by any of the concerned respondents. Nevertheless, the
petitioners’ seniority is now being adversely affected by invoking
proviso to Rule 7 of the Gujarat Forest Department [Forest
Officers Examination] Rules, 1972. Proviso to the said
Rule 7 was amended on 6th March, 1993 long after the
petitioners and the concerned respondents were already promoted as
Assistant Conservators of Forests and had left the cadre of Range
Forest Officer behind. It is the grievance of the petitioners that
the impugned seniority list may be operated to govern not only
the further promotions but may be operated to promote the concerned
respondents by reverting the petitioners to the lower cadre of
Assistant Conservator of Forests.
Prima
facie, it appears that at the relevant time, the seniority was
determined on the principle of continuous officiation. Accordingly,
the petitioners and the concerned respondents were promoted as
Assistant Conservators of Forests. The aforesaid proviso to Rule 7 as
was in force then was apparently not invoked. The said proviso
to Rule 7 as amended on 6th March, 1993 is now being
invoked twenty years after the petitioners and the concerned
respondents were promoted as Assistant Conservators of Forests. The
question that arises for consideration by this Court is whether the
State Government should be permitted to invoke the rule of seniority
which was not operated for several decades so as to adversely affect
the service conditions of its servants retrospectively.
In
the circumstances, pending this petition, it is directed that the
impugned seniority list published on 30th June,
2005 may be operated to govern further promotions from the cadre of
Assistant Conservator of Forests to be made hereafter but shall not
be operated retrospectively so as to revert Assistant Conservators of
Forests or Deputy Conservators of Forests who were already promoted
prior to the date of publication of the seniority list i.e. 30th
June, 2005.
The
operation of the impugned seniority list pending this
petition, as aforesaid, shall be subject to the result of this
petition.
{Miss R.M Doshit, J.}
Prakash*
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