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Laxmichand Jethalal Bhalakia and anr. Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR237
AppellantLaxmichand Jethalal Bhalakia and anr.
RespondentState and ors.
Excerpt:
.....the promotion rules, i am of the opinion that the petitioners are justified in claiming that they should be considered eligible for promotion to the post of mamlatdar in the revenue department in the state service, and the state government was clearly in error of law in rejecting the recommendation of the district development officer, palanpur in favour of the petitioners......cadre of clerk after their allocation to the panchayat service from the revenue department of the state government, are entitled to the benefit of rule 2 of the gujarat panchayat services (promotion to cadre in state service) rules, 1974 (hereinafter referred to as 'the promotion rules') arises in this petition.2. the claim of the petitioners is founded on the ground that as prescribed in item no. 7 of the schedule read with rule 2 of the aforesaid promotion rules, the petitioners being aval karkuns are entitled to seek promotion to the post and cadre of mamlatdar in the revenue department of the state services since they have exercised option for promotion to the state services within the prescribed period of four months after their promotion to the post of aval karkun from the post of.....
Judgment:

B.K. Mehta, J.

1. A short question whether the petitioners, who are promoted as Aval Karkuns from the cadre of clerk after their allocation to the Panchayat Service from the Revenue Department of the State Government, are entitled to the benefit of Rule 2 of the Gujarat Panchayat Services (Promotion to Cadre in State Service) Rules, 1974 (hereinafter referred to as 'the Promotion Rules') arises in this petition.

2. The claim of the Petitioners is founded on the ground that as prescribed in Item No. 7 of the Schedule read with Rule 2 of the aforesaid Promotion Rules, the Petitioners being Aval Karkuns are entitled to seek promotion to the post and cadre of Mamlatdar in the Revenue Department of the State Services since they have exercised option for promotion to the State Services within the prescribed period of four months after their promotion to the post of Aval Karkun from the post of Clerk. The claim of the petitioners is resisted on behalf of the State Government-respondent No. 1 herein, and on behalf of the contesting respondents-employees on the ground that on true construction and effect of the said Item 7 only those allocated Aval Karkuns from the Revenue Department to the Panchayat Services are entitled to claim promotions to the posts of Mamlatdars in the Revenue Department provided they satisfied the conditions prescribed in that behalf.

3. The next question which, therefore, arises is about the construction of Item No. 7 of the Schedule to the Promotion Rules read with Rule 2 thereof. Before I deal with the rival interpretations canvassed on the question of construction, it is necessary to dispose of shortly the preliminary objection that has been raised by the State Government to this petition. It has been urged that the petition is bad on the ground of delay and laches on the part of the Petitioners since in effect and substance they are challenging the promotion granted to respondents Nos. 2, 3 and 4 by the order of the State Government of November 25, 1980 and inasmuch as they have moved this Court for appropriate writs, orders and directions in February, 1982, they are now estopped from seeking the reliefs which they have prayed for in this petition. I do not think that there is much substance in this preliminary objection since the Petitioners have, inter alia stated in paragraph 9 of the petition that they have learnt that the District Development Officer, Banaskantha district communicated to the Revenue Department that these petitioners were entitled to be promoted to the posts of Mamlatdars in the Revenue Department, and they belong to the Scheduled Caste, but the said recommendation was negatived on the ground that since the Petitioners, when allocated to the Panchayat Services, were merely Clerks and not Aval Karkuns they are not entitled to the benefit of promotion to the posts of Mamlatdars as prescribed in Item 7 of the Schedule to the Promotion Rules. It is no doubt true that the Petitioners have not precisely stated as to on what date the recommendation was made, and on what date that recommendation was turned down. But I have been told by Mr. Zaveri, learned Advocate for the Petitioners and also affirmed by the learned Assistant Government Pleader appearing on behalf of the State Government that the said recommendation of the District Development Officer was turned down on November 20, 1981. I do not, therefore, think that there can be any bar of delay or laches to this petition which was lodged in this Court on 1st February 1982 since in the very nature of things, the Petitioners would learn about the rejection of the recommendation only after some time of the receipt of the communication by the District Development Officer from the State Government. The preliminary objection, therefore, stands rejected.

4. On the question of construction, I am inclined to agree with the construction canvassed on behalf of the Petitioners. It is necessary to state what is the relevant rule and the relevant entry in the Schedule on the construction of which the resolution of the dispute depends. It should be noted at the outset that the Promotion Rules have been enacted by the State Government in exercise of the powers conferred by Section 223 read with Section 203(4)(a) of the Gujarat Panchayats Act, 1961. Section 203 is part of Chapter XI which contains provisions relating to the services. Section 203(1), as amended by Gujarat Act No. 28 of 1978, provides for the constitution of Panchayat Service consisting of persons employed in connection with the affairs of Taluka Panchayats and District Panchayats. Such panchayat services are to consist of such classes, cadres and posts as the State Government may, by orders from time to time, determine. Sub-section (3) thereof provides for the power of the State Government to make rules regulating the mode of recruitment to the Panchayat Services and in respect of appointments, transfers and promotions of officers and servants in Panchayat Services, and disciplinary actions against any of them. Sub-section (4) under which the Promotion Rules have been framed, inter alia, provides for making rules entitling the persons holding such classes of posts in District cadre to be recruited to such cadres in the State Services as may be prescribed. Section 323 provides for the power of the Government to make rules. The rules are, therefore, enacted with a view to give opportunity of promotional avenues to the members of the Gujarat Panchayat Services in the cadres in the State Services. The short title of the Rules is self-explanatory. Rule 2 which is the only material rule so far as the present petition is concerned reads as under:

2. Cadres for promotions in the State Service and personnel eligible thereto-An Officer or servant holding a post belonging to a cadre in Panchayst Service specified in column 1 of the Schedule annexed to these rules (hereinafter referred to as 'the said Schedule') shall be eligible for promotion to the post, or posts belonging to the cadres in the State Service specified against it in column 2 of the said Schedule, subject to conditions specified in column 3 thereof, having regard to the relevant recruitment rules for the time being in force.

5. Schedule to the Promotion Rules consists of two parts-Part I and Part II. I am concerned with Item No. 7 of Part I of the Schedule since the entire claim of the Petitioners has been founded on this Item No. 7. Item 7 has been reproduced in extenso since there is an inherent indication in the conditions prescribed in. column No. 3 of Item No. 7 to support the interpretation canvassed on behalf of the Petitioners.

Schedule

--------------|--------------------------------------------------------------

Posts and cadre | Post and cadre in Conditions,

in the Panchayat | the State Service

Service. | to which eligible

| for promotion.

1 | 2 3

--------------------|-------------------------------------------------------------

1. PART-1

to (1) Persons holding the post nicnti-

6. oned in column 1 under Part I shall

7. (i) Chitnis (in the Mamlatdar in satisfy all the conditions laid down by

Mahalkuri Grade) Revenue Dep- Govt. from time to time for promotion

(Allocated from artment. to the post specified in column 2, incl-

the Revenue Dep- uding that of passing of the depart-

artment.) -mental examination and that in cases

where such examinations are held by

(ii) Assistant the Gujarat Public Service Commission

Taluka Develop- (hereinafter referred to as 'the Comm-

ment Officer (All- ission') they shall have to pass exam-

ocated from the ination held by the Commission and

Revenue Depart- subject to the approval of the

ment) and Commission.

(iii) Aval Karkuns (2) Persons specified in column 1

(Allocated from under Part I of the schedule shall be

Revenue eligible for promotion either to the

Department.) post respectively specified in column 2

or to post in the Gujarat Development

Service, Class II, provided they satisfy

the conditions laid down for promotion

to these posts including that of passing

of the departmental examination and

that in cases where such examinations

are held by the Commission, they shall

have to pass the examination held by

the Commission. Such persons should

give their option in writing to the

District Development Officer and to the

Head of Department concerned within

four months from the date of publication

of these rules and in case of those, who

are appointed to post specified in

column 1 after the publication of these

rules, in clear vacancy, within 4 months

from the date of their appointment to

such posts and option once so exercised

shall be final:

Provided that those persons, who have

failed to exercise the option within the

aforesaid period of four months, shall be

deemed to have opted for the Gujarat

Development Service Class II.

---------------------------------------------------------------------------------------

6. The crux of the problem is as to who are the eligible persons to claim the benefit of promotions to the posts of Mamlatdars in the Revenue Department. It is claimed by the petitioners that all those employees who have been allocated to the Panchayat Services from the Revenue Department are entitled to the posts of Mamlatdars provided they are Aval Karkuns at the time when the promotion avenue opened and they have exercised their option within the specified time as specified in condition No. (2) prescribed in column 3 against Item No. 7 of the Schedule. The State Government resists this interpretation and urges that the benefit of promotion to the posts of Mamlatdars is available only to those servants belonging to the cadre of Panchayat Services, if and when they are allocated from the State Services they were holding the posts of Aval Karkuns. I am not inclined to agree with the contention urged on behalf of the State Government for many reasons. In the first place, it is, as prescribed in Rule 2, the benefit of promotion to the cadres in the State Service which the Legislature wanted to be conferred and made available. The only qualification which has been prescribed in claiming such a benefit of promotion to the State Services is that an officer or a servant claiming such benefit must hold a post belonging to the cadre in the Panchayat Services specified in column 1 of the Schedule. Column 1 of Item No. 7 of the Schedule entitles three categories, namely Chitnis in Mahalkari grade, Assistant Development Officer and Aval Karkuns who are allocated from the Revenue Department as entitled to the benefit of promotions to the posts of Mamlatdars. Now if the interpretation which has been canvassed on behalf of the State Government is correct, sub-item (ii) of Column 1 of Item No. 7 which entitles Assistant Taluka Development Officer, allocated from the Revenue Department to be entitled to the benefit of promotion to the post of Mamlatdar, could never have been prescribed by the Legislature since admittedly there is no post of Assistant Taluka Development Officer in the Revenue Department of the State Government. Therefore, the limitation which has been prescribed in column 1 is only to the extent that parent department of the allocated employee must be Revenue Department. In the second place, there is an inherent indication in support of the view which I am inclined to take. The indication is to be found in condition No. (2) where different periods for exercise of option have been prescribed. As regards the employees who were Chitnis or Aval Karkuns at the time of their allocation to the Panchayat Services, the option was to be exercised within four months from the date of coming into force of the Promotion Rules, while as regards the employees who are appointed to the posts specified in column 1 after publication of these Rules, the option was to be exercised within four months of their date of appointment to such posts. The option is to be exercised before promotion to the post of Mamlatdar in the Revenue Department, or to the Gujarat Development Service, Class II. The proviso to condition (2) enjoins that if the option is not exercised within the specified period, the officer or the servant holding the post belonging to the cadre of Panchayat Services shall be deemed to have opted for Gujarat Development Service, Class II. The very fact that the Legislature has prescribed different periods for exercise of the option for those employees belonging to the Panchayat Services who have been appointed to the posts of Aval Karkuns after coming into force of the Promotion Rules clearly indicates that the benefit of promotion to the post of Mamlatdar in the Revenue Department was also intended to be made available to such employees, allocated to the Panchayat Services from the Revenue Department even though they might have been promoted to the posts of Aval Karkuns after their allocation. The learned Assistant Government Pleader, however, invited my attention to Item No. 2 in Part II where Aval Karkuns other than those allocated from the Revenue Department are given the benefit of promotion to the Gujarat Development Service, Class II. It -was urged that if we read Item No. 7 in Part I and Item No. 2 in Part II together, it is clear that Item No. 7 entitles only those Aval Karkuns who are allocated from the Revenue Department to the Panchayat Services to the benefit of promotion to the post of Mamlatdar in the Revenue Department, since Item No. 2 of Part II entitles Aval Karkuns other than those allocated from the Revenue Department to the benefit of promotion to the Gujarat Development Service, Class II. I do not think that this dichotomy, on reference to Item 7 of Part I and Item 2 of Part II as spelt out by the learned Assistant Government Pleader supports the interpretation canvassed by him on behalf of the State Government on the construction of Item 7 of Part I. Item 7 of Part I and Item 2 of Part II in my opinion provide for two different sets of employees having regard to their parent departments. Item 7, sub-item (iii) provides for Aval Karkuns whose parent department may be Revenue Department, while Item 2 of Part II provides for those Aval Karkuns whose parent department is other than the Revenue Department. The Aval Karkuns whose parent department is Revenue Department have been given the benefit of promotion to the post of Mamlatdar in the Revenue Department since they come from the Revenue Department. But the Aval Karkuns whose parent department is not Revenue Department have been restricted in the matter of promotion to the Gujarat Development Service, Class II, and they have not been given benefit of promotion to Class II in the Revenue Department. On true construction of Item 7 of Part I of the Schedule to the Promotion Rules, I am of the opinion that the Petitioners are justified in claiming that they should be considered eligible for promotion to the post of Mamlatdar in the Revenue Department in the State Service, and the State Government was clearly in error of law in rejecting the recommendation of the District Development Officer, Palanpur in favour of the Petitioners.

6.1. The result is that the Petitioners are entitled to the declaration that I they are entitled to promotion to the posts of Mamlatdars in the Revenue Department, and that the State Government shall consider the cases of the Petitioners for inclusion in the select list of suitable persons for promotion to the posts of Mamlatdars as prescribed in the Recruitment Rules in that behalf, and if the Petitioners are included in the select list, the State Government shall give the benefit of deemed date of promotion and accord them due seniority in the promoted cadre and give all benefits flowing from the decision of granting promotions to them. The State Government shall complete the entire exercise as directed above within 12 weeks from today.

7. Rule is made absolute accordingly but having regard to the facts and circumstances of the case, and that the matter is a matter of interpretation of Entry 7 of Part I of Schedule to the Promotion Rules, there should be no order as to costs.


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