DHIRAJLAL J SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) : The petitioner by filing this petition on 16.9.1986, under Article 226 of the Constitution of India has challenged the promotion of respondent no.3 dated 26.3.1984, as Divisional Accountant, on the basis of action being arbitrary, illegal, unconstitutional and violative of Articles 14 and 16 of the Constitution of India and against apprehended action of respondent, State on the ground that in contravention of Rules, State is likely to promote respondent no.4 as Divisional Accountant.

(2.) Today, when the matter is heard the petitioner and the respondents 3 and 4 have retired from service. The relevant dates are as under : @@@ -------------------------------------------------------------------- Sl. Incumbent Date of appointment as no. Jr.Clerk Sr.Clerk Sr.A/c Clerk Sel.Gr. Dy A/c -------------------------------------------------------------------- 1. Petitioner 26.09.59 -- 06.04.65 01.03.71 11.02.74 2. Resp. 3 -- -- 23.10.69 not given 25.03.80 3. Resp. 4 15.10.59 07.11.60 04.09.68 not given 02.12.86 However, deemed date was given as 28.02.1972. --------------------------------------------------------------------

(3.) The petitioner's grievance is that so far as respondent no.3 is concerned he was given deemed date insofar as the post of the Deputy Accountant is concerned as 5.7.1977, which was cancelled by subsequent order dated 2.6.1986. Learned advocate for the petitioner submitted that respondent no.3 actually was promoted on 25.3.1980 as Deputy Accountant. He submitted that respondent no.3 could not have been promoted unless and until he completed five years of service. The petitioner and respondents nos.3 and 4 belonged to a common cadre of Accounts Group II. So far as the appointment from Accounts Group II is concerned, he submitted that it could be only on the basis of proved merit and efficiency. There is no dispute about the dates indicated against their names, as indicated hereinabove and that the petitioner and respondents nos.3 and 4 were holding the post of Deputy Accountant from the dates shown against their names in the column of Deputy Accountant. He drew the attention of the Court to Part II of the Gujarat Panchayat Services (Classification and Recruitment) Rules, 1967. Part II refers to common Accounts Cadre. So far as Accounts Group I is concerned, the relevant provision is as under: