IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5014 of 1996
For Approval and Signature:
Hon'ble MISS JUSTICE R.M.DOSHIT
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1. Whether Reporters of Local Papers may be allowed
to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy
of the judgement?
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge?
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MI JOSHIPURA
Versus
STATE OF GUJARAT THROUGH SECRETARY
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Appearance:
MR BA VAISHNAV for Petitioner
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CORAM : MISS JUSTICE R.M.DOSHIT
Date of decision: 11/04/97
ORAL JUDGEMENT
This petition was admitted to final hearing on
6th September, 1996 and the respondents were directed to
file their affidavit in reply to the petition, if any, on
or before 31st December, 1996. Today when the matter is
taken up for hearing, neither of the respondents has
filed its affidavit in reply to the petition nor the
learned advocate appearing for the respondents is
present.
The petitioner herein is an Assistant
Commissioner of Labour who has claimed deemed promotion
to the post of Assistant Commissioner of Labour with
effect from 23rd April, 1982. The facts leading to the
petition are as under :
Under order dated 26th August, 1969, the
petitioner was appointed as Government Labour Officer.
His seniority vis-a-vis other Government Labour Officers
was determined on the basis of continuous officiation.
Under the provisional seniority list published on 8th
September, 1981, the petitioner appeared junior to one
Shri Bhansali and Shri Dave. Said Shri Bhansali and Shri
Dave were promoted to the post of Assistant Labour
Commissioner on 23rd April, 1982. The petitioner applied
for direct recruitment to the post of Assistant Labour
Commissioner and having been selected was appointed as
Assistant Labour Commissioner on 8th December, 1983. The
provisional seniority list of the Government Labour
Officers was revised and published under Government
Circular dated 19th December, 1983. Under the said list
(Annexure “B” to the petition), the seniority of the
Government Labour Officers was arranged in accordance
with the statutory quota for direct recruitment and
promotion. The petitioner therein has been shown to be
senior to the above referred Shri Bhansali and Shri Dave.
The said seniority list was finalised under Government
Circular dated 18th December, 1989 and the petitioner
retained his seniority over said Shri Bhansali and Shri
Dave in the final seniority list also. Thus, the
petitioner’s position in the cadre of Government Labour
Officer having become crystallized, he made a
representation to the Government to grant him deemed
promotion to the post of Assistant Commissioner of Labour
with effect from 23rd April, 1982, the date on which Shri
Bhansali and Shri Dave were promoted. He also requested
that he may be treated as having been promoted to the
post of Assistant Commissioner of Labour and be treated
as promotee Assistant Commissioner of Labour. Pursuant
to the representation and the reminders sent by the
petitioner, the Government under its communication dated
28th June, 1995 inquired of the petitioner whether he
wanted to opt for being treated as promotee Assistant
Commissioner instead of a Direct Recruit Assistant
Commissioner. The petitioner under his reply dated 10th
July, 1995 submitted his option to be treated as promotee
Assistant Commissioner of Labour and claimed that he be
given deemed promotion with effect from 23rd April, 1982,
the date on which Shri Bhansali and Shri Dave were so
promoted. Since then the petitioner has sent several
reminders, however, the option submitted by the
petitioner under his communication dated 10th July, 1995
has not been decided till the date.
The facts stated in the petition are
substantiated by the relevant seniority lists which are
produced at Annexures “A”, “B” and “C” to the petition.
It does not appear to be fair that the Government, having
given option to the petitioner for being treated as
promotee Assistant Commissioner of Labour, has not taken
any decision on the option submitted by him. Even after
filing of this petition, the Government has not cared to
file any affidavit in reply to the petition. The
petition, therefore, requires to be allowed. The
Government is directed to consider the option given by
the petitioner on 10th July, 1995 and communicate its
decision to the petitioner as soon as possible but not
beyond eight weeks from the date of receipt of copy of
this order. In the event the petitioner’s option for
being treated as promotee Assistant Commissioner of
Labour is accepted, the petitioner’s claim for deemed
promotion with effect from 23rd April, 1982 shall be
considered in accordance with law and if the petitioner
is otherwise found to be eligible and fit for promotion,
he be given deemed date of promotion as that of 23rd
April, 1982. In that eventuality, the petitioner shall
be entitled to revision of his pay with effect from date
of the deemed promotion. However, he shall not be
entitled to claim actual difference of salary from the
date of deemed promotion till the date of actual
promotion. It is further clarified that in that case the
petitioner shall be treated as promotee Assistant
Commissioner of Labour for all purposes and he shall not
be entitled to claim any benefit of being direct recruit
Assistant Commissioner of Labour. The aforesaid exercise
of considering the petitioner’s case for deemed promotion
and giving of other consequential benefits shall be
completed as expeditiously as possible. Petition is
allowed to the aforesaid extent. Rule is made absolute.
The respondents shall bear the costs of this petition.
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