JUDGMENT :

N.V. ANJARIA, J.

1. Preferred by the State and the Commissioner of Midday Meals and Schools, the present Letters Patent Appeal under clause 15 of the Letters Patent is against the judgment and order Judge dated 17.03.2022 of learned Single, whereby Special Civil Application of the respondent-original petitioner came to be allowed in part.

2. Learned Single Judge negatived the claim and the prayer of the petitioner for grant of higher payscale upon completion of 9 years in the cadre of Head Clerk, however, the prayer for grant of deemed date of promotion with effect from 09.10.1989 in the cadre of Auditor Group-I came to be granted.

2.1 Following is the operative part of the said relief, because of which the appellants are aggrieved:

“12. The respondents are directed to pass necessary orders in case of the petitioner conferring the deemed date of promotion of Auditor Group-I w.e.f. 09.10.1989 (i.e. from the date of his juniors) within a period of two months and thereafter, re-fix his pay as well as retirement benefits at par with his juniors namely Mr. V.B. Damor and Mr. P.G. Damor and he shall be paid the similar benefits, which are conferred to them.”

3. The facts of the case inter alia were that the petitioner upon being selected by the Gujarat Public Service Commission in the cadre of Junior Clerk came to be posted in the Fisheries Department with effect from 12.05.1969. On 22.10.1969, the petitioner was transferred as Junior Clerk in the office of Director of Education, now known as the Commissioner of Mid- Day Meals and Schools. The petitioner came to be promoted as Senior Clerk on 21.01.1972 and thereafter, as Head Clerk with effect from 21.02.1991. The petitioner was promoted to the post of Auditor Group-I, by order dated 02.01.2002 with effect from 16.12.2002. It was a permanent promotion and the petitioner accepted the same.

3.1 When the petitioner was promoted from Senior Clerk to Head Clerk and thereafter from Head Clerk to Auditor Group-I, there was no seniority list prepared by the Department. The seniority list for the cadre of Senior Clerk was ultimately published on 02.04.2002. The petitioner was granted deemed date in respect of post of Senior Clerk to be 15.11.1971, while his date of actual promotion was 24.01.1972.

3.2 In the same way, when the seniority list for the Head Clerk cadre was published on 16.02.2002, instead of actual date of promotion which was 21.02.1991, the deemed date of 28.03.1985 for the post of Head Clerk was granted to the petitioner. Now, when the seniority list for the cadre of Auditor Group-I was published, the petitioner was not given any deemed date and the authorities considered the actual date of promotion. This became grievance for the petitioner.

3.3 It is the case of the petitioner that while he was denied the deemed date in the cadre of Auditor Group-I, two juniors named Shri V.B. Damor and Shri P.G. Damor, came to be granted deemed date of 09.10.1989 in the cadre. These two persons were placed in the seniority list at serial no. 360 and 361 respectively, whereas the petitioner's name figured at serial no. 348. Though the petitioner was admittedly senior, it was the case of the petitioner that he was thus denied the lawful treatment and was not granted the deemed date.

3.4 The claim of the petitioner for grant of deemed date of promotion to the post of Auditor Group-I was rejected by the authorities of the respondents on the ground that by order dated 30.03.1999, the petitioner was granted promotion to the post, but the petitioner refused the same.

3.5 It is the case of the respondent that therefore, in view of the Rule 11 of Gujarat Civil Services (Classification and Recruitment) General Rules, 1967, the petitioner is not entitled to be granted the deemed date.

3.6 The Special Civil Application and the prayers made therein were contested by the respondents by filing affidavit-in-reply as well as additional reply through respondent no. 2. It was contended that as in the list of