Dismissed

State of Gujarat v. Husainbhai Yakubbhai Maru

Gujarat HC12 Jul 2021LPA/902/2015

Case brief

AI extract

What is this about?

The High Court dismissed the Letters Patent Appeal against an order confirming the Respondent-Petitioner's seniority. The Court held that declaring the senior Petitioner as surplus while retaining juniors was illegal and the delay in litigation was condonable due to the Authority's inaction.

What did the court decide?

The Letters Patent Appeal is dismissed, and the impugned oral judgment dated 24th July, 2014 is confirmed.

State of Gujarat Vs Husainbhai Yakubbhai Maru — Pension and Retirement Benefits | Gujarat HC (2021)

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C/LPA/902/2015 CAV JUDGMENT DATED: 12/07/2021

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 902 of 2015 In

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R/SPECIAL CIVIL APPLICATION NO. 8250 of 1995

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MR. JUSTICE B.N. KARIA

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1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

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2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy No of the judgment ?

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4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?

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STATE OF GUJARAT , COLLECTOR, DISTRICT AHMEDABAD & SHRI R.V.RATHOD

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Versus

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HUSAINBHAI YAKUBBHAI MARU

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Appearance:

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MR. KRUTIK PARIKH, ASSTT.GOVERNMENT PLEADER(1) for the Appellant(s) No. 1,2,3

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MR KUNAL S SHAH(5282) for the Respondent(s) No. 1

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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI

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and

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HONOURABLE MR. JUSTICE B.N. KARIA

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Date : 12/07/2021 CAV JUDGMENT

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(PER : HONOURABLE MR. JUSTICE B.N. KARIA)

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Present Appellants, who were the original Respondents in

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C/LPA/902/2015 CAV JUDGMENT DATED: 12/07/2021

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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Special Civil Application No. 8250 of 1995 , have challenged the oral judgment and order dated 24^th July, 2014 passed by the learned Single Judge of this Court Coram: [Hon’ble Mr. Justice G.R.Udhwani] in Special Civil Application No. 8250 of 1995 wherein, directions were issued to refix the seniority of the present respondent, who is the original Petitioner, above his juniors while he was serving in the office of Mamlatdar, Dhandhuka and consequential thereupon all the benefits based upon the seniority.

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The brief facts of this case are described as under:-

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2.1. The original Petitioner was recruited on 13^th September, 1974 for the post of Clerk under the Gujarat Non-Secretarial Clerks and Clerk Typist in the Mamlatdar Office at Dhanduka, Dist.Ahmedabad. The Petitioner resumed his service at the office of Mamlatdar, Dhanduka on 16.9.1974. But, on 10.10.1975 , he was wrongly declared as surplus vide order No. CB/EST/1975 of the Collector, Ahmedabad and posted at the office of Treasury Department, Ahmedabad. Against the declaration of the Petitioner as surplus, he made his representation to the office of the Collector, Ahmedabad on 3^rd November, 1975 , requesting that he was wrongly declared as surplus because he was at Sr. No. 221 in the seniority list.

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C/LPA/902/2015 CAV JUDGMENT DATED: 12/07/2021

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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He was appointed on 16, September, 1974 whereas, his juniors being Mr. R.V.Rathod and Mr. D.D.Vankar were at Sr.Nos. 226 and 243 and were appointed on 18^th September, 1974 and dated 27^th September, 1974 respectively but both of these juniors were not declared surplus by the Respondent-Authority and they were retained in the office of Mamlatdar, whereas, the Petitioner, who is a senior to the said two persons, was wrongly declared as surplus which was, as per the averment of the Petitioner, against the policy prevailing at the relevant point of time. No response was received by the Petitioner of his representations dated 3^rd November, 1975, thereafter, he made further representations on 16^th November, 1975, 24^th April, 1978, 1^st March, 1979, 13^th October, 1980, 18^th April, 1982, 13^th March, 1984, 12^th November, 1985 and 18^th July, 1986, but no response was received by him regarding his representations.

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2.2. Therefore, the Petitioner approached this Court by way of filing Special Civil Application No. 1334 of 1993 wherein, this Court was pleased to pass an order on 18^th July, 1994 directing the authority to consider the representations of the Petitioner and take decision as early as possible.

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C/LPA/902/2015 CAV JUDGMENT DATED: 12/07/2021

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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2.3 Pursuant to the said order passed by this Court, the Petitioner made fresh representations on 26^th August, 1994 and 14^th December, 1994 , but no response or decision was taken on the said representations. The Petitioner again, preferred petition being Special Civil Application No. 8250 of 1995, wherein, this Court, vide order dated 24^th July, 2014, allowed the petition. Against which, the Appellants have preferred the present Letters Patent Appeal under the provision of Clause 15 of the Letters Patent Appeal.

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Heard learned Assistant Government Pleader Mr. Krutik Parikh for the Appellants-original Respondents and learned Advocate Mr. Krunal S.Shah for the Respondent-Original Petitioner.

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It is submitted by learned Assistant Government Pleader Mr. Krutik Parikh for the Appellants that the impugned order passed by learned Single Judge is completely illegal, arbitrary, without appreciating the records and bad in law. It is further submitted that the affidavit was filed by the Competent Officer of the Respondent in Special Civil Application preferred by the Petitioner which has been completely overlooked in the impugned order by the learned Single Judge That, the affidavit filed by the Respondent-Authority was

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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uncontroverted as well. As per settled principle of practice, contention and documents remained uncontroverted it would be required to be accepted. It is further submitted that there was a delay of 18 years in filing Special Civil Application by the Petitioner . That, learned Single Judge has also viewed that number of representations were made starting from 3^rd November, 1975 to 13^th March, 1984 , but none of the representations, as alleged by the Petitioner, were received by the Respondent-Authority. It is further submitted that the representations cannot be sufficient ground for condonation of delay. That, cause was arose in the year 1975 and Special Civil Application was preferred in the year 1993, and therefore, there was a delay of almost 18 years , which was not explained properly by the Petitioner. It is further submitted that on the ground of delay and latches, the prayer requires to be dismissed.

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4.1. It is further argued by learned Assistant Government Pleader that learned Single Judge has committed an error in not considering the fact that the department of the petitioner was changed and as per the Rules of the Government, the Petitioner cannot be said to have retained his seniority at the department where, he was relieved as surplus. It is further submitted that the Petitioner was serving for

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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one year, and thereafter, declared as surplus and posted at the office of the District Treasury, Ahmedabad. That, looking to the efficiency of the Petitioner, he was declared as surplus at the relevant point of time and his juniors were kept in service. It is further submitted that the Petitioner was working with the office of the District Treasury Office, Ahmedabad as Senior Clerk and Shri R.V.Rathod who was working as Deputy Mamlatdar and hence Petitioner cannot claim the pay parity because both were working in different cadre and their pay-scale was also different.

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4.2 It is further submitted by learned Assistant Government Pleader for the Appellants that earlier Special Civil Application preferred by the Petitioner was withdrawn by him and second Special Civil Application was filed after a lapse of 20 years without any justified explanation. Learned Single Judge has committed grave and patent error, condoning the delay by granting leave to the Petitioner, and therefore, it was requested by learned Assistant Government Pleader to allow the present Letters Patent Appeal and quash and set aside the oral judgment and order passed by the learned Single Judge in Special Civil Application No. 8250 of 1995 on 24^th September, 2014 .

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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From the otherside, Learned Advocate Mr. Kunal S.Shah for the Respondent -original Petitioner has strongly objected the arguments advanced by learned Assistant Government Pleader for the Appellants-original Respondents and submitted that as the original Petitioner was recruited on 13.9.1974 as Jr. Cleark and served one year in the office of Mamlatdar. He was at Sr. No. 221 in the seniority list, maintained by the office, however he was wrongly declared as surplus. That junior to him Mr. R.V.Rathod stood at Sr. No. 226 who had joined the office on 18^th September, 1974 and another person Mr. D.D.Vankar was stood at Sr. No. 243 and had joined the office on 27^th September, 1974 were retained in service illegally. It is further submitted that the junior most employee Mr. D.D.Vankar was required to be declared as surplus instead of the Petitioner who stood at Sr.No. 221. However, various representations were made by the Petitioner to the Collector, Ahmedabad, no reply was received from the Office of the Collector, and therefore, there was no delay in preferring the Special Civil Application. That, copies of the representations made by the present Petitioner on different dates were produced by him. It is further submitted that as a consequence of wrongfully declaring the Petitioner as a surplus clerk,

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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he was relieved but was provided the post of Jr. Clerk in the office of Treasury Officer, Ahmedabad. However, the Petitioner suffered a lot of financial loss and loss of opportunities of promotions as Deputy Mamlatdar in the pay-scale of Rs.1640-2900. It is further submitted that in a matter of seniority, the seniority is to be counted from the date of entering into service. That, in Special Civil Application No. 1334 of 1993 , the Petitioner was directed to make representations and concerned authority to consider those representation and give its decision as early as possible. However, none of the representations made by the Petitioner were decided or replied by the concerned authority. It is further submitted that as per Notification dated 30^th March, 1994 issued by the General Administration Department, seniority from the date of joining the service was required to be considered by the authority. That, as per the said Notification , the Petitioner was entitled to get seniority above Shri R.V.Rathod a nd he is rightly entitled to get the pay -scale which the junior to the Petitioner were granted. After disposal of Special Civil Application No. 1334 of 1993 , two different representations dated 26^th August, 1994 and 14^th December, 1994 were made by the Petitioner but, he is not given any benefit of seniority nor his representations were decided. That, the Petitioner cannot be declared as surplus retaining

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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his junior. That, learned Single Judge has rightly considered all the aspects argued by the Petitioner and allowed the petition. The Respondent-Authority has completely ignore the seniority of the Petitioner and wrongly declared him as surplus retaining his junior.

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5.1. That, no error has been committed by the learned Single Judge while allowing the petition preferred by the Petitioner vide oral judgement dated 24.7.2014.

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5.2 Hence, it was requested by learned Advocate appearing for the Respondent-petitioner to dismiss the present Letters Patent Appeal and confirm the impugned oral judgement passed by learned Single Judge in his favour.

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Having heard learned Assistant Government Pleader Mr. Krutik Parikh for the Appellants-original Respondents as well as learned Advocate Mr. Kunal S.Shah for the Respondent- original Petitioner and going through the record of the Special Civil Application No. 8250 of 1995 , it is undisputed fact that the original Petitioner was recruited for the post of Clerk under the Gujarat Non-Secretarial Clerks and Clerk Typist in the Office of

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C/LPA/902/2015 CAV JUDGMENT DATED: 12/07/2021

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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Mamlatdar, Dhanduka on 13.9.1974 . The Petitioner had resumed his service at the office of Mamlatdar, Dhanduka on 16^th September, 1974. He worked approximately one year in the said office and suddenly on 10.10.1975 without any prior intimation in writing or giving any opportunity of hearing, he was declared as surplus vide order No. CB/EST/1975 by the Collector, Ahmedabad. At the very point of time, he was posted at the office of Treasury Department, Ahmedabad on account of declaring him as surplus. The Petitioner made his representation to the Office of the Collector, Ahmedabad on 3^rd November, 1975 requesting that, he was wrongly declared as surplus because he was at Sr. No. 221 and was appointed on 16.9.1974 whereas, his juniors namely Mr. R.V.Rathod and Mr. D.D.Vankar, who were at Sr. No. 226 and 243 and were appointed on 18.9.1974 and 27.9.1974 respectively, were not declared surplus by the Respondent-Authority and they were retained in the office of Mamlatdar. As per further representations made by the Petitioner, he was senior to the said two persons and was wrongly declared as surplus which is against the policy prevailing at the relevant point of time. Representation made by the Petitioner dated 3^rd November, 1975 , was unattended and was not taken into consideration. No reply was given to the Petitioner in connection with his representation as

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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stated. The Petitioner made further representations on the very same issue on 16^th November, 1975, 24^th April, 1978, 1^st March, 1979, 13^th October, 1980, 18^th April, 1982, 13^th March, 1984, 12^th November, 1985 and 18^th July, 1986 , however, such different representations were made by the Petitioner at different point of time as stated above, no response to any of the representations were given by the respondent-authority to the Petitioner. Under the circumstances, Petitioner approached this Court by way of filing Special Civil Application No. 1334 of 1993 wherein, this Court was pleased to pass an order dated 18^th July, 1994 directing the Authority to consider the representations of the Petitioner and pass necessary order as early as possible. Pursuant to the said order passed by this Court vide order dated 18^th July, 1994, the Petitioner made his fresh representations dated 26^th August, 1994 as well as 14^th December, 1994 to the concerned Authority. However, clear directions was given to the concerned Authority by this Court in Special Civil Application No. 1334 of 1993 vide order dated 18^th July, 1994 and two further representations made by the Petitioner on 26^th August, 1994 as well as dated 14^th December, 1994, no response was given to the Petitioner nor any decision was taken on the said representations. This Court, would like to refer Affidavit-in-Reply on behalf of the

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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present Appellants produced before the learned Single Judge in

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Special Civil Application No. 8250 of 1995 which is stated as under :-

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“7. In reply to para-3 of the petition. I say and submit that looking to the efficiency of the Petitioner , he was declared as surplus at the relevant point of time and his juniors were kept in service.

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I say and submit that the office of the deponent has not received any representations sent by the Petitioner and has not produced any evidence in support of his claim that he had made several representations before the respondent No.2 . The Petitioner being a Government servant he has to submit his representation through proper channel which he had not done. ”

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Surprisingly, Officer Shri Vinayabhai N.Desai, I/c. Additional Collector, Co-ordination has stated on oath that the office of the Deponent has not received any representation sent by the Petitioner and has not produced any evidence in support of his claim that he had made several representations before the concerned Authority. The Petitioner, being Government Servant has to submit his representations through proper channel which he had not done. It is not in dispute that Special Civil Application No. 1334 of 1993 preferred by the Petitioner wherein, he had disclosed the various representations made by him and the same were not attended by the concerned Authority. This Court was pleased to pass an order dated 18^th July, 1994 to consider the representations of the Petitioner and decide it as early as possible. However, Mr. Vinayabhai N.Desai I/c.

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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Additional Collector Co.ordination had stated on oath that the Office of the Deponent has not received any representations sent by the Petitioner. If the representations forwarded by the Petitioner were not through proper channel then, it is a duty of the concerned Authority to inform the Petitioner to forward his representations through proper channel. Keeping silence by the Authority or throwing representations in dustbin, nor taking any decision, it was not proper on the part of the present Appellants. It was clear violation of the order passed by this Court on 18^th July, 1994 in Special Civil Application No. 1334 of 1993. After passing of this order, further two representations were made by the Petitioner on 26^th August, 1994 and 14^th December, 1994 respectively which were also not attended by the concerned Authority. Attitude of the Appellants about not deciding the representations made by the Petitioner, time to time, not taking into consideration by giving any answer or reply at any point of time, is clearly against the order of this Court as referred above. The Petitioner, again was compelled to prefer another Special Civil Application No. 8250 of 1995, which was allowed by this Court vide order dated 24^th July, 2014, against which, the Appellants have preferred the present Letters Patent Appeal.

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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It is say of the Appellants that looking to the efficiency of the Petitioner, he was declared as surplus at the relevant point of time as his Juniors were kept in service.

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Nothing was produced on record by the Appellants that what was the criteria of efficiency required to be considered by the concerned Authority in the present case. Further nothing was placed on record to show that how the Petitioner was not efficient in performing his duty as Clerk in the Office of Mamlatdar at Dhanduka as he worked for one year and what were the circumstances, for which, the Authority compelled to declare him as surplus and posted at the office of Treasury Department, Ahmedabad. There is nothing on record placed by the present Appellants before the learned Single Judge that there was no any deficiency or fault into service in a capacity in performing his duty by the original Petitioner during the period of one year as he worked in the Office of Mamlatdar, Dhanduka. It was stated that looking to the efficiency of the Petitioner, he was declared as surplus at the relevant point of time, which is not enough on the part of the Appellants. Further without giving any opportunity of hearing or prior notice before declaring the Petitioner as surplus action of the

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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respondent authority was not proper as per our opinion. No explanation was offered and justified the cause to the petitioner. It is not in dispute that the Petitioner was listed at Sr. No. 221 in the seniority list maintained by the office as he was appointed on 16^th September, 1974 whereas, his juniors namely Mr. R.V.Rathod was listed in the seniority list at Sr. No. 226 who was appointed on 18^th Septmber, 1974. Admittedly, another junior of the Petitioner namely Mr. D.D.Vankar was listed in the seniority list at Sr. No. 243 as he was appointed on 27^th September, 1974 . These two juniors of the present Petitioner were not declared as surplus and were retained in the office of Mamlatdar whereas, the Petitioner however was senior to the said two persons was wrongly declared as surplus which was clearly against the policy prevailing at the relevant time. This fact of seniority list was not denied by the officer who has filed his affidavit before the learned Single Judge. The Resolution dated 30^th March, 1994 clearly specifies that in the case where the persons are to be declared as surplus, the junior most incumbent will have to be picked as surplus and not any person. This Notification further clarifies to count the seniority from the date of joining his service and effect was given from 10^th June, 1990 . If we consider the Notification issued by the General Administration Department of the State dated 30^th

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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March, 1994, the Petitioner was entitled to get the benefit of this Notification (Annexure “E”) from the date of joining his service i.e. 16^th September, 1974. If it is strictly implemented with Notification, Petitioner would be entitled to get his seniority above Shri R.V.Rathod and Mr. D.D.Vankar as they were juniors to him. The present Petitioner could not have been declared as surplus after completing one year service in the office of the Mamlatdar, Dhanduka stating that he was found insufficient without any record or giving any notice on this issue and retained his juniors. Present Petitioner cannot be declared as surplus by the concerned Authority as rightly held by the learned Single Judge. The impugned action of declaring the Petitioner as surplus was nullity, Hence, to give the seniority upon his junior while he was serving in the Office of Mamlatdar cannot be said to be illegal or perverse in the present case.

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So far as delay part is concerned, the Petitioner had made an explanation on the various representations made by him which are produced on record. None of the representations were attended by the authority nor were replied. After passing of order by this Court in Special Civil Application No.1334 of 1993 dated 18^th July, 1994 directing the authority to consider the representation made by the

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STATE OF GUJARAT & 2 other(s) Versus HUSAINBHAI YAKUBBHAI MARU

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Petitioner and take decision as early as possible, again, the Petitioner made his two representations i.e. dated 26^th August, 1994 and 14^th December, 1994 respectively to the concerned Authority. Unfortunatelly, no response was received by the Petitioner nor any decision was taken on the said representations and therefore, he was compelled to prefer second Special Civil Application No. 8250 of 1995 wherein the Appellants-Authority was directed to decide the representations made by the Petitioner. However, in the affidavit it is denied of receiving any such representations stating that the representations ought to have been addressed through the proper channel. It has rightly considered by the learned Single Judge vide order dated 24^th July, 2014 in Special Civil application No. 8250 of 1995 that representations were received or were not addressed through proper channel if that was so, it was the duty of the Appellants to inform the Petitioner accordingly, so that he could have directed to make his representations through proper channel. From 1975 to the date of filing of the present petition, representations of the original Petitioner were not considered, and therefore, learned Single Judge has rightly held that the Petitioner cannot be thrown out on the ground of the delay. If any delay was there, that was on the part of the present Appellants for not taking/ considering any of

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the representations made by him from 1975 onwards. Without entering into merits of the case, specific directions was made by this Court in Special Civil Application No. 1334 of 1993 dated 18^th July, 1994, it was not complied with. There is apparent discrimination and violation of the fundamental rights of the Petitioner.

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For the reasons aforementioned, the impugned Oral Judgment dated 24^th July, 2014 passed by the learned Single Judge cannot be interfered or disturbed by this Court, and therefore, it is confirmed accordingly. The present Letters Patent Appeal is dismissed. There would no order as to costs.

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(DR. VINEET KOTHARI,J)

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(B.N. KARIA, J)

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BEENA SHAH

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State of Gujarat v. Husainbhai Yakubbhai Maru

Case brief

What is this about?

What did the court decide?

State of Gujarat v. Husainbhai Yakubbhai Maru

Case brief

What is this about?

What did the court decide?

What the court decided

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