M. V. KAILA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) xxx xxx xxx.

(2.) The facts undisputed are that the petitioner is a general category employee serving as Under Secretary. He was promoted as Under Secretary on 18th April, 1991. Respondents Nos. 4 to 14 belong to scheduled tribes and were promoted as Under Secretaries to the State Government during the period from November 1989 to May 1990. Thus, the said respondents Nos. 4 to 14 have been promoted as Under Secretaries before the petitioner was so promoted. Said respondents were far junior to the petitioner in the lower cadres of Assistant as well as the Section Officer. However, on account of the reservation for promotion to the cadre of the Under Secretary, said respondents were promoted as Under Secretary earlier than the petitioner. Further, promotion from the post of Under Secretary is made to the post of Deputy Secretary to the State Government. The post of Under Secretary is the lowest post in the State Administrative Service Class-I. Promotion to the post of Deputy Secretary is made on the basis of proved merit and efficiency. No reservation is provided for promotion to the post of Deputy Secretary. Thus, all the Under Secretaries have to compete with one another on merits for further promotion to the post of Deputy Secretary to the State Government.

(3.) Mr. Upadhyay, the learned Advocate appearing for the petitioner has submitted that all along the petitioner was senior to respondents Nos. 4 to 14. However, said respondents got earlier promotion to the post of Under Secretary only on the ground that they belong to the scheduled tribes. But for the fact, they would not have been considered for promotion earlier than the petitioner and the petitioner would have been promoted as Under Secretary prior to the said respondents. He has submitted that the State Government has not framed any rules of seniority in the cadre of Under Secretary. In absence of specific rules governing the seniority, general rule of seniority should prevail. He has submitted that since in the lower cadres, the petitioner was senior to the said respondents, after his promotion to the post of Under Secretary, he shall remain senior to the said respondents. Thus, the petitioner has prior right for being considered for further promotion as Deputy Secretary to the. State Government. It is the grievance of the petitioner that in spite of the above referred general rule of seniority/respondents Nos. 4 to 14 are being considered for further promotion in violation of the right of the petitioner to be so considered earlier than those respondents. In fact, considering said respondents senior to the petitioner, respondents No. 4 and 5 and Nos. 6 to 8 have been promoted as Deputy Secretary on 8th November, 1996 and on 21 December 1996, respectively. Said promotions are also challenged in this petition. He has placed sole reliance upon the judgment of the Supreme Court in the matter of Ajit Singh Januja v. State of Punjab and Ors. (AIR 1996 SC 1189). He has particularly relied upon paragraphs 15, 16 and 17 of the judgment. In the matter of Joginder Sing Sethi v. Punjab Government (1982 (2) SLR 307). The Government orders issued in respect of the implementation of reservation policy in the State of Punjab came up for challenge before the High Court of Punjab & Haryana. The Court while considering the validity of the above order, quashed and set aside the above-referred order issued by the Government and held that: