VARSANBHAI RAJUBHAI RATHWA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners in both these petitions have challenged the final eligibility list of the employees who have passed the Lower Revenue Qualifying Examination (LRQE) and Higher Revenue Qualifying Examination (HRQE), published under the Government Circular dated 9/03/1995 as per Annexure "A" in both these petitions. Special Civil Application No. 7158 of 1995 was filed on 21/08/1995 and the six petitioners of that petition have also challenged their reversion order dated 6-9-1995. The petitioners of Special Civil Application No. 7933 of 1995 have also challenged their reversions under the order dated 6-9-1995. These reversions are from the post of Mamlatdars to which they were appointed on ad hoc basis to the Deputy Mamlatdar's post.

(2.) The petitioners belong to the Subordinate Revenue Service. Initially, they belonged to the Lower Division of the Subordinate Revenue Service and by passing the Lower Revenue Qualifying Examination, they became qualified to be appointed in the Upper Division of the Subordinate Revenue Service. The Subordinate Revenue Service as defined under the Rules includes persons appointed as Clerks, Circle Inspectors and Typists in the Lower Division and Deputy Mamlatdars and Circle Officers in the Upper Division. The post of Mamlatdar is a post higher to the posts in Upper Division of the Subordinate Revenue Service. Those aspiring to become Mamlatdars are required to pass the Higher Revenue Qualifying Examination. There are two sets of Rules for regulating conditions of service of persons recruited in Revenue Subordinate Service in so far as they relate to passing of the Gujarat Lower Revenue Qualifying Examination and the Gujarat Higher Revenue Qualifying Examination. The Gujarat Lower Revenue Qualifying Examination Rules were published under the Notification dated 18-3-1978 and the Gujarat Higher Revenue Qualifying Examination Rules were published under the Notification dated 1-1-1980. Of these, the Gujarat Lower Revenue Qualifying Examination Rules, 1978 became subject-matters of intense controversy in earlier proceedings and the constitutionality of the rules which were challenged earlier was upheld by the Division Bench of this Court in a group of petitions, Special Civil Application No. 2860 of 1993 etc. decided on 16-12-1983, which decision came to be confirmed by the Supreme Court in Civil Appeal No. 1675 of 1984 and other matters decided on 2-5-1986. Two petitions as a sequel of that decision - Special Civil Application No. 4615 of 1986 and Special Civil Application No. 4744 of 1986 came to be considered and decided by the Division Bench on 7/11/1980, reaffirming the earlier decision.

(3.) In the group of matters which was decided on 16-12-1983, the Court had given certain directions stating that the District Collector concerned should prepare the seniority list on the principles indicated therein in each of the Districts. This was necessary because the cadre of Deputy Mamlatdar which was in the Upper Division of the Subordinate Revenue Service is a District level cadre. The Collectors were given a direction to arrange seniority in the case of Deputy Mamlatdars of the concerned persons and other eligible persons under their respective Collectorates in the light of these directions. It was also directed that having arranged seniority of concerned employees accordingly, proper orders of reversion will have to be passed by the concerned authorities. As per the principles laid down for preparing the seniority list which were to be followed by the District Collectors, the clerks who had passed the qualifying examination, i.e., LRQE within the specified period and specified chances were entitled to rearrangement of seniority inter-se with the persons of their own class on the basis of Rule 9. Those who were senior to them but had passed the examination subsequently and beyond the specified period and chances were held to have no claim over those who fall under Rule 9. Those who fall under Rule 9 become eligible for promotion when they acquire qualification by passing the examination and that day should determine their eligibility in the matter of promotion. It was held that there was no question of readjustment as between persons of their class and persons who may be senior to them, but who passed the examination subsequently beyond the specified period and chances. It was directed that the seniority of those who passed beyond the specified chances and period will depend on the date of eligibility and that in turn being the date of their acquiring the examination qualification. Therefore, first they have to be ranked on that basis and thereafter, adjustment has to be made by placing such seniors in the clerical cadre who have passed examination later over their juniors in the same class, subject to the rule that they would not get their seniority as against those juniors who have not only passed but have actually been promoted. As regards those who have not passed the examination, it was held that they had no claim in the list and therefore, they need not be ranked and their reversion could be effected even before preparing the final list. The Collectors were expected to prepare the lists as per the guidelines within a period of three months from the date of the receipt of the writ by the Government. In the decision rendered on 7/11/1990, the Division Bench negatived the challenge against the list prepared by the Collector, Valsad and in the process held that the persons who had passed the LRQE beyond the stipulated chances and period (described as "late latifs" in the judgment) would generally be treated as senior to regulars, i.e., those who passed it within the prescribed chances later on, subject to operation of Rule 9 of the LRQE Rules. It was held that such late latifs will be treated as senior to regulars passing in the same examination subject to the rider that if on account of operation of Rule 9 of LRQE Rules, a regular who passes subsequently is to be placed above a regular who might have passed earlier and in carrying out that exercise, if seniority positions of late latifs are to be adversely affected and the latter are to be pushed down, then it would be a permissible exercise. It was held that when the question of fixing inter-se seniority of clerk, clerk-cum-typist and typist for the purpose of eligibility for promotion to the post of Deputy Mamlatdar crops up in the light of result of a given Departmental Examination, the following steps have to be taken by the concerned authorities :- (1) It has to be first ascertained whether there are clerks who have passed the examination within specified chances and specified period and who may be treated as regulars. (2) To ascertain whether in the aforesaid category of clerks, there are any clerks who may be required to be subjected to Rule 9 while fixing their inter-se seniority, as eligible clerks fit for promotion to the cadre of Deputy Mamlatdar. (3) If such operation of Rule 9 qua regulars is to be pressed in services, then to that extent, late latifs will have to be pushed down in seniority while fixing their eligibility for promotion to the post of Deputy Mamlatdar. (4) If such operation of Rule 9 qua regulars is not attracted, then parent seniority of clerks in the combined cadre of clerks, clerk-cum-typists and typists will be pressed in service for fixing inter-se seniority of regulars on the one hand and late latifs on the other. (5) So far as late latifs are concerned, their seniority for the purpose of eligibility for promotion will be worked out subject to operation of proviso to Rule 7 amongst the late latifs only. It was held that these five steps will have to be taken every time when interse seniority of eligible clerks for promotion to the post of Deputy Mamlatdar's cadre is to be fixed and reshuffled in the light of results of concerned examination taken from time to time. It was held that this may result in pushing down of late latifs in subsequent seniority list in the light of subsequent examination results by new comers - regulars subject to the rider that this pushing down by new comers - regulars will be confined to result of two succeeding examinations only following the current examination where the concerned late latifs passed the examination and extending to a further period spread upto two more such successive examinations and not beyond that period.