M K PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners have mainly prayed for quashing the seniority list of Assistants dated 18.09.1979 and demanded seniority in the cadre of Assistants from the date of their actual appointment, so as to claim other benefits on that basis. It was fairly conceded by learned counsel, Mr. Hathi, appearing for the petitioners, that three of the petitioners have passed away and rest have retired since long. There is no dispute about the facts that the petitioners were appointed as Clerks in Subordinate Secretariat Service between 1956 and 1959. After formation of the State of Gujarat on 01.05.1960, they were promoted as Junior Assistants/ Assistants on different dates and had been working as Section Officers in different departments of the Secretariat. It is, however, also brought on record by affidavit of the Under Secretary to Government of Gujarat in the General Administration Department that the petitioners were allocated to the newly formed State of Gujarat w.e.f. 01.05.1960 and were promoted on the posts of Junior Assistant/ Assistant on temporary basis; and, as instructed by the Government Circular dated 02.11.1960, with the condition that the incumbents were liable to be replaced by the candidates selected through GPSC and the dates of their temporary promotion could not be taken into account for the purpose of seniority.

(2.) In view of several litigations with regard to seniority and promotions of promotees like the petitioners and seniority of persons inducted in service by way of direct recruitment, and after the decision dated 09.03.1972 of Division Bench of this Court in Special Civil Application No. 1330 of 1969, the Government had made, under Article 309 of the Constitution, Gujarat Subordinate Secretariat Service (Seniority of Assistants) Rules, 1977. Admittedly, seniority of the petitioners is now exclusively governed by those rules and those rules have been upheld by Division Bench of this Court in N.K.Dholakia & Ors. Vs. State of Gujarat [1979 GLR page 666]. Even the challenge to the aforesaid judgement has failed in the Supreme Court.

(3.) In view of the above back-ground of facts and related litigation, another Division Bench of this Court has, recently on 11.02.2010 in Letters Patent Appeal No. 535 of 1994, held that the seniority, which has been fixed in accordance with the aforesaid Rules of 1977, has to be applied and the seniority which is settled since long ought not to be disturbed on the basis of some principle enunciated in different litigation before the Supreme Court. That view is again recently buttressed by observations of the Apex Court in Shiba Shankar Mohapatra Vs. State of Orissa [AIR 2010 SC 706]. The principle which is culled out and enunciated therein after reference to several previous judgements is that once the seniority has been fixed and it remains in existence for a reasonable period, any challenge to that should not be entertained.