SURESH VELJIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner seeks a declaration that the action of the respondent - State Government of not promoting him from Class II to Class I post of Medical Officer w.e.f. 24th February 1981, was violative of Articles 14 and 16 of the Constitution, and also of the government resolution regarding the reservation and roaster in favour of the scheduled Tribe and therefore, illegal and void. A direction is sought that the petitioner should be granted deemed promotion as Class I Medical Officer w.e.f. 24th September 1981. In the alternative, it has been prayed to declare that the petitioner was entitled to be promoted as Class I Medical Officer w.e.f. 3rd August 1985, as per the recruitment rules.

(2.) According to the petitioner, he was selected as Class II Medical Officer through the P.S.C. and appointed to the post by letter dated 27th July 1977, a copy of which is at Annexure "A" to the petition. There were no recruitment rules for the post of promotion, which was Medical Officer Class I. However, the benefits of roster and reservation were applied in case of direct recruitment as well as in promotion in State services since 1976. In the category of Medical Officer Class II, one Dr. Miss N.K.Patel and the petitioner were the two schedule tribe employees. It is stated that, by government resolution dated 24th September 1981, a copy of which is at Annexure "B" to the petitioner, nineteen Class II Medical Officers came to be promoted as Class I Medical Officers. However, Dr. Miss N.K.Patel, who was at Srl. No.4 in the order of promotion and who belonged to a Scheduled Tribe, declined promotion, whereupon her promotion was cancelled. Therefore, the petitioner was entitled to promotion to Class I post, as per the roster as a Schedule Tribe candidate in her place. The action of the respondents in not promoting the petitioner as Class I Medical Officer on 24th September 1981 was, therefore, in breach of the reservation policy and violated Articles 14 and 16 of the Constitution. According to the petitioner, when the promotions were given under the resolution dated 24th September 1981, the petitioner did not know that he was entitled to the benefits of reservation and roster, and therefore, he did not raise any objection at that time. Since the petitioner was the only Scheduled Tribe candidate available for promotion to the said post, he was entitled to be promoted as per the reservation policy of the government and the subsequently enacted rules which came into force from 24th November 1981, namely, the Gujarat Insurance Medical Officers Class I (Allopathy) E.S.I.S. Recruitment rules, 1981, could not be applied to him. The petitioner came to be promoted under the new recruitment rules as late as on 7th October 1987 even though he had completed eight years' of service in Class II post on 2nd August 1985 and was, therefore, eligible even under the recruitment rules for promotion.

(3.) The learned counsel appearing for the petitioner strongly contended that, since the petitioner was a Schedule Tribe candidate, who was duly qualified for the post of promotion and had a brilliant academic career, he ought to have been promoted in place of Dr. Miss N.K.Patel, who was selected to the Class I post against Schedule Tribe vacancy, but had refused the promotion. He submitted that, since the petitioner was the only Schedule Tribe candidate left in the Class II cadre, he became entitled to be appointed as per the prevalent roster for being promoted to the said post from 24th September 1981. The learned counsel argued that, at the time when the vacancy arose, the new rules had not come into force and therefore, on the date when the petitioner was entitled to be considered against the vacancy which, as per the roster, was required to be filled in by appointing the Scheduled Tribe candidate, the recruitment rules could not have been given a retrospective effect so as to deny considering the petitioner's case as the only Scheduled Tribe candidate available for promotion to Class I post in view of the refusal to promotion by the other Schedule Tribe candidate, who was senior to him.