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SCA/5865/2010 1/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5865 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=====================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? YES
2
To
be referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
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 ?NO
5
Whether
it is to be circulated to the civil judge?NO
=====================================
PANDYA
AKSHAYKUMAR DAMODAR & 22 - Petitioner(s)
Versus
STATE
OF GUJARAT & 18 - Respondent(s)
=====================================
Appearance
:
MR JIGNESH V PATEL for
Petitioner(s) : 1 - 23.
MS MANISHA NARSINGHANI, AGP for
Respondent(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1 - 2,
18,
MR MANISH J PATEL for Respondent(s) : 2,
MR VILAS G GOSWAMY
for Respondent(s) : 3 - 19.
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 31/08/2010
ORAL
JUDGMENT
1.0 Present
petition was heard by this Court on 10th May 2010 (Coram:
Honourable Mr. Justice K.S. Jhaveri). The Court passed the following
order:
1. Heard
Mr.Jignesh Patel, learned advocate for the petitioners.
2. Rule.
To be expedited. There shall be ad interim relief in terms of
paragraph 8(B).
3. Notice
as to interim relief, returnable on 16th
July 2010.
Direct Service is permitted.
2.0 Relief
prayed for in this petition is as under:
8(A) This
Honorable Court may be pleased to issue a writ of Mandamus or any
other appropriate writ, order and direction declaring that to
quash and set aside the appointment order passed by
Respondents authority on 13/10/2009 at Annexure I as well as the
subsequent order passed on 9/4/2010 at Annexure K to this
petition.
2.1 Ad-interim
relief granted by this Court on 10th May 2010 reads as
under:
Pending
the hearing and final disposal of this petition, be pleased to stay
the operation and execution of the impugned order of appointment
dated 13/10/2009 at Annexure I as well as the subsequent order
passed dated 9/4/2010, at Annexure K to this petition.
2.2 Learned
advocate Mr. Jignesh Patel for the petitioners invited attention of
the Court to Annexure ‘I’, which is an order dated 13th
October 2009, passed by the Dy. Secretary, Panchayat, Rural Housing
and Rural Development Department, whereby, the authority was pleased
to grant sanction under the powers available to him under Rule 20 of
the Panchayat Service Classification and Recruitment Rules, 1998.
The order states that, the Government, after careful
consideration, is pleased to grant permission to consider the
services of the persons named in the attached schedule, 17 in
numbers, working as Multipurpose Health Workers, who were appointed
by Sabarkantha District Panchayat on ad-hoc basis, as regular,
subject to the condition mentioned in that order from the date they
resumed the duties, ‘for all purposes’. The Conditions prescribed in
the said order/resolution are as under:
(1) The
concerned employee must be possessing the required qualification for
the post of Multipurpose Health Worker on the date of recruitment.
(2) The
person concerned must be qualifying the age prescribed at the
relevant time and the persons belonging to the reserved category must
be answering to the age prescribed if they belong to that particular
category.
(3) The
persons concerned will have to pass the computer training CCC
training/exam from time to time within prescribed time limit.
2.3 The
learned advocate for the petitioners submitted that the
aforesaid order/resolution is construed to mean that these persons
will steal march over the petitioners though the petitioners were
regularized in 1998 by order dated 15th June 1998. He
submitted that once the petitioners were regularized in the year
1998, the present respondent nos. 3 to 19 could not have been
regularized from the date of their joining the duty and they could
have been regularized only with effect from the date of order i.e.
13th October 2009.
3.0 The
learned advocate Mr. Goswamy for the respondent nos. 3 to 19
vehemently submitted that the order is just and proper and long
awaited justice is done to respondent nos. 3 to 19. But then, the
learned advocate for the respondent nos. 3 to 19 could not support
his submission by any provision of law, which provides for granting
seniority with retrospective date. In absence of any specific
provision authorizing the authority to grant retrospective seniority,
the order is required to be quashed and set aside to the extent it
confers seniority on respondent nos. 3 to 19 with retrospective
effect.
4.0 Without
going into other contentions raised in this petition and without
going into the other submissions made by the learned advocate Mr.
Goswamy, this petition is partly allowed and order dated
13th October 2009 is modified to the
extent that the respondent nos. 3 to 19 will get the seniority only
from the date of the order i.e. 13th October 2009.
Further it is clarified that so far as the inter se seniority
to respondent nos. 3 to 19 is concerned, that will be on the basis of
their erstwhile seniority with the Panchayat.
5.0 Rule
is made absolute to the aforesaid extent with no order as to costs.
[
Ravi R. Tripathi, J. ]
hiren
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