B. P. CHAUHAN v. STATE — 1989 DIGILAW 33 (GUJ)

P. M. CHAUHAN, J. ( 1 ) INITIALLY appointed as Clerks on 24/02/1961 and 17/06/1961 respectively by the Director of Ports Gujarat State Ahmedabad and subsequently promoted as Senior Clerks on 29/10/1977 were sought to be reverted to the post of Clerks by order dated Novem 15/11/1979 as their provisional seniority was sought to be fixed at a lower stage considering them as regularly appointed only from 17/04/1971 and not from the date of their appointment as they appeared and passed through the test by Gujarat Public Service Commissioner under the Gujarat Non-Secretariat Clerk-typists and Typists (Recruitment) Rules 1970 and the Gujarat Non-Secretariat Clerks Clerk-typists and Typists (Direct Recruitment Procedure) Rules 1970 The main contention of the petitioners is that they should be considered as regularly appointed Clerks from the date of their appointment and not from the date of passing the above referred examination held by the Gujarat Public Service Commission (hereinafter referred to as the Cr. P. S. C.) and accordingly they are not liable to be reverted. For the purpose of appreciation of the rival contentions and appreciating the subsequent developments after filing this Special Civil Application the facts may be stated in short. ( 2 ) PETITIONER No. 1-B. P. Chauhan was recruited as a Peon on 20/12/1960 in the Office of the Director of Ports and by order dated 24/02/1961 he was appointed to officiate as a Junior Clerk temporarily until further orders against the existing vacancy as he was qualified and eligible to be appointed to the said post. He was then placed in the Selection Grade and promoted as Senior Clerk on 29/10/1979 After this petition was filed on 19/11/1979 the Gujarat Maritime Board was established under the Major Ports Act and the grievance of the petitioner No. 1 are mostly resolved. His seniority has been fixed at Sr. No. 36 In the Seniority List and was promoted as Head Clerk with effect from 20/07/1968 Petitioner No. 2-J. S. Patel was appointed as Junior Clerk on 17/06/1971 and was placed in the Selection Grade on 1/04/1976 and promoted as Senior Clerk on 20/10/1977 He has however voluntarily retired from service on 1/10/1983 Even though he has retired he has asserted his rights so that he may get other service benefits. ( 3 ) THE State of Gujarat came into existence on 1/05/1960 on bifurcation of bi-lingual Bombay State and the Office of the Director of Ports was established at Ahmedabad. After the formation of the State of Gujarat Government of Gujarat issued various Government Resolutions for the recruitment of clerks and other such Class III services by Government Resolution No. A. S. C. 20269-B dated 21/11/1960 the Government of Gujarat in supersession of the previous Government Resolutions regarding the recruitment of the Clerks; Junior Assistants Typists Steno-typists Stenographers Gr. I and Gr. II implemented the Scheme for the recruitment of the above cadres in the Government Department and other Head Offices as specified in Schedule B to the Resolution. For that purpose the Government has also considered the Bombay State Political and Service Department Resolution dated September 18 1952 It is also directed in the Government Resolution dated 21/11/1960 that from 1/05/1960 and after that the Head of the Departments and the offices specified in Schedule B should not appoint the clerks or other categories of the employees specified above except on temporary basis and on the condition that such employees will be replaced by candidates selected by the G. P. S. C. By that Government Resolution the specified departments and the Head Offices were placed within the purview of the G. P. S. C. In the Schedule the Office of the Director of Ports was not included and therefore the Office of the Director of Ports was not placed within the purview of the G. P. S. C. It is also clear that by that Government Resolution previous Government Resolutions were superseded and therefore the previous Government Resolutions by which the recruitment of the clerks in the Office of the Director of Ports was covered did not govern the recruitment of the clerks in that department. The Centralised Recruitment Scheme for ministerial posts and particularly for posts of clerks in District and Regional Offices of different departments was promulgated by Government Resolution No. RAC-1062-F General Administration Department Government of Gujarat dated 21/01/1963 and by that Government Resolution the scheme for centralising in the recruitment of clerks in District and Regional Offices of various departments which were not within the purview of the G. P. S. C. was implemented. Centralised Recruitment Scheme also provided for temporary employment and replacement of such temporary employed clerks by regularly appointed clerks under the Scheme. It is not the case of either of the parties that the Centralised Recruitment Scheme was applicable and therefore it is not necessary to consider the details of that Scheme. It is not contended by the respondents that the recruitment of the clerks was governed by that Scheme. On the contrary the Contention as stated in the affidavit-in-reply Sled by Mr. P. J. Jadeja Admini- strative Officer is that the recruitment of the clerks in the Office of the Director of Ports at Bombay was within the purview of the Public Service Commission. It is also admitted position that the Office of the Director of Ports is a State level Office and not a District or Regional Office. The Office of the Director of Ports is situated at Ahmedabad. The Government Resolution dated 21/01/1963 was modified and the Government sanctioned the revised scheme by Government Resolution dated 9/07/1964 and it was specified that the recruitment of the clerks in District and Regional Offices of all departments which were not within the purview of the Gujarat Public Service Commission may be made as per the said Scheme. It is not necessary to consider the details of the Centralised Recruitment Rules for the purpose of this petition. After the Government Resolution dated 21/11/1960 the Government issued another Government Resolution Addendum No. ASC 1063/14523-A dated 28/10/1963 by which the Office of the Director of Ports Ahmedabad was added in Appendix B to the Government Resolution General Administration Department No. ASC- 2260 dated 21/11/1960 by which the Scheme for the recruit- ment to the post of Junior Assistants Clerks etc. in the departments of secretariat and offices of the Heads of Departments etc. at Ahmedabad was specified. The Office of the Director of Ports Ahmedabad being office of the Head of Department was added in Appendix B to the aforesaid Govt. Resolution but it was not specifically stated that the Scheme will be applicable from 1-5-1960. Before the Government Resolution dated 28/10/1963 was issued and Schedule B was amended both the petitioners were already appointed as Clerks in 1961. Resolution but it was not specifically stated that the Scheme will be applicable from 1-5-1960. Before the Government Resolution dated 28/10/1963 was issued and Schedule B was amended both the petitioners were already appointed as Clerks in 1961. The Director of Ports considered that the recruitment of the clerks in that department also came within the purview of the Gujarat Public Service Commission from 1/05/1960 in view of the Government Resolution dated 10/10/1963 and therefore issued the Circular dated 19/02/1964 directing the clerks and typists appointed by that office after 1/05/1960 that it was in their interest to get through the test by the Public Service Commission to continue in the service and their services could be continued subject to their passing the G. P. S. C. examination. They were also advised to pass through the examination before the C. P. S. C. selectees were posted in that department. They were also informed that not more than two trials will be afforded and in case of repeated failure they will be replaced by the candidates selected by the Public Service Commission. Such clerks and typists were also reminded by another Circular dated 21/09/1964 Petitioners did not appear in the test by the Public Service Commission possibly because they were asserting their right to continue in the service as they were regularly appointed by the competent authority. It also transpires that the department also did not take it seriously and the G. P. S. C. selectees were not posted vice the petitioners. ( 4 ) THE Government with a view to regularise the appointments between- 1/05/1960 and 20/11/1960 issued Government Resolution No. VPY/1170-A dated 25/01/1970 and directed to regularise the appointments of the clerks and other such employees appointed during that period by the offices specified in the list. The Office of the Director of Ports is also included in that list. The appointments by that office during 1/05/1960 and 20/11/1960 made under certain circumstances were regularised. It appears that the office of the Director of Ports was included in that list as the Government Resolution dated 20/11/1960 was issued in supersession of previous such Government Resolutions and in that Government Resolution the Office of the Director of Ports was not included for the purview of the Public Service Commission. It appears that the office of the Director of Ports was included in that list as the Government Resolution dated 20/11/1960 was issued in supersession of previous such Government Resolutions and in that Government Resolution the Office of the Director of Ports was not included for the purview of the Public Service Commission. This is however not very relevant for the purpose of the present dispute in the petitioners were appointed as clerks in the year 1961 and not during the period specified in the aforesaid Government Resolution. ( 5 ) THEREAFTER the Gujarat Non-Secretariat Clerks Clerk-Typists and Typists (Recruitment) Rules 1970 and the Gujarat Non-Secretariat Clerks Clerk-Typists and Typists Direct Recruitment Procedure) Rules 1970 were enacted by the Governor of Gujarat under proviso to Art. 309 of the Constitution of India on 17/04/1970 Rule 29 of the Gujarat Non-Secretariat Clerks Clerk-Typists and Typists (Direct Recruitment Procedure) Rules 1970 provided for the regularisation of the cases referred to in sub-rule (1) clause (a) of the said Rule. It specifically provides that the persons initially recruited otherwise than through the Gujarat Public Service Commission or the Centralised Recruitment Scheme as Clerks Clerk-typists or Typists in the Offices to which the statutory rules apply and who had rendered not less than 2 years continuous service as Clerks Clerk-Typists Typists on 31-12-1968 and who continued in Government Service on the dale of the Notifica- tion shall be required to appear at the special interview and/or special typing test to be held for them for their selection for appointment to the post of Clerk Clerk-typist or Typist as the case might be. Rule 30 of the said Rules provides that in the case of the candidates who were eligible for concession specified in Rule 29 their allotment and seniority should be determined in accordance with the orders that might be issued by the Government in that behalf after bringing into force the said Rules. It appears from the affidavit of Mr. Jadeja Administrative Officer that the said Rules were made applicable to the Office of the Director of Ports and that tact is not controverted by the petitioners. Acting under the powers conferred upon the Government by Rule 30 of the said Rules the Government issued Resolution No. Bharat/11/70k dated 1/09/1970 setting out the instructions regarding the determination of seniority and allotment of the candidates regularised under Rule 29 of the said Rules. Acting under the powers conferred upon the Government by Rule 30 of the said Rules the Government issued Resolution No. Bharat/11/70k dated 1/09/1970 setting out the instructions regarding the determination of seniority and allotment of the candidates regularised under Rule 29 of the said Rules. By that Resolution the Government directed that the allotment and seniority of the candidates belonging to the categories specified in Rule 29 of the Rules should be determined as set cut therein. Under paragraph 2 of the said Resolution such of the candidates as were selected for the posts of Clerks Clerk- typists and Typists under the said Rules as belong to the categories specified in sub-rule (1) and clause (a) of sub-rule 6 of the Rule 29 of the said Rules and who were in Government service should be continued as regular recruits from the date of their allotment and/or regular appointment and inter se seniority of these candidates should be determined according to their ranks in the select list prepared as per Rule 18 of the Rules. The Rules were followed by the Resolution dated Apri 15/04/1971 which directed that the seniority of such candidates as sere selected for the posts of Clerks Clerk-typists ar d Typists under he Rules and as belonging to the categories specified in sub-rule (1) and clause (a) of sub-rule 6 of Rule 29 of the Rules should be deter- mined from 17/04/1970 as if their date of allotment and/or appointment is 17/04/1970 irrespective of whether they were in service or not. Directions were also issued prescribing the manner in which the common seniority list in order of merit should be prepared. This Circular dated 15/04/1971 is impugned by the petitioners asserting that they were never irregular appointees but were regularly appointed and inspite of that under the erroneous directions given by the first respondent their services are regularised as and from 17/04/1970 on the assumption that the petitioners were not appointed regularly. This Circular dated 15/04/1971 is impugned by the petitioners asserting that they were never irregular appointees but were regularly appointed and inspite of that under the erroneous directions given by the first respondent their services are regularised as and from 17/04/1970 on the assumption that the petitioners were not appointed regularly. ( 6 ) THE contention of the petitioners is that when they were appointed the clerks in the Office of the Director of Ports were neither required to pass through the test conducted by the Gujarat Public Service Commission nor they were covered by the Centralised Recruits ment Scheme and the Heads of the Departments had power and authority to select and appoint them and accordingly they are regularly legally and validly appointed clerks and can never be considered to be irregularly appointed clerks. According to the petitioners the Government Resolution dated 21/11/1960 superseded 811 the previous Government Resolutions and the Office of the Director of Ports was established after the formation of the State of Gujarat and they were not governed by any previous instructions or Government Resolutions issued by the Government of Bombay. It is also contended that the impugned resolution is illegal unjust contrary to Arts. 14 and 16 of the Constitution of India and therefore void. According to the respondents as per the affidavit of Mr. Jadeja Administrative Officer the judgment of the Supreme Court in the case of P. C. Patel and Ors. v. Smt. T. H. Pathak and Ors. AIR 1977 SC 101 is not applicable to the present case in view of the fact that the Director of Ports was within the purview of the Ex-Bombay Public Service Commission immediately before 1/05/1960 whereas the Directorate of Civil Supplies was not within the purview of the Public Service Commission. In view of this contention of the respondents it should be examined as to whether the recruitment of clerks in the Office of the Director of Ports was governed by any such set of Rules or recruitment could be only through the Public Service Commission. In view of this contention of the respondents it should be examined as to whether the recruitment of clerks in the Office of the Director of Ports was governed by any such set of Rules or recruitment could be only through the Public Service Commission. A Division Bench of this Court (Coram; B. J. Divan C. J. and D. A. Desai J.) (as they then were) had the occasion to consider the provisions of Rules 138 and 139 of the Bombay Civil Services (Classification and Recruitment) Rules 1939 It is observed that the said Rules are the Administrative Roles even though subsequently the Rules were amended by Rules framed under Art. 309 of the Constitution of India on 22/05/1957 It would follow that original Rules of 1939 by reason of incorporation would get the statutory status. However so far as the recruitment to the post of Clerks Clerk-typists and Typists in the offices other than the secretariat in the Bombay work concerned the offices brought within the purview of the Public Service Commission by virtue of Rule 139 were required to be the offices of the State Government in Greater Bombay. It is also observed that it is true that in 1957 the office of the Director of Civil Supplies (Accounts) was a separate Directorate and was located in Greater Bombay but after setting up of the new State of Gujarat a new Directorate of Civil Supplies (Accounts) was sot up and the Head-quarter was located at Ahmedabad. After 1/05/1960 on which date the State of Gujarat was sot up the Directorate ceased to function from Greater Bombay and therefore it is obvious that it ceased to be within the purview of the Public Service Commission. The Division Bench relied upon the decision of the Supreme Court in the case of R. S. Deodhar v. State of Maharashtra AIR 1974 SC 259 wherein it is observed in terms that Rule 139 which was specifically made with reference to Government Offices in Greater Bombay became wholly inapposite and incongruous and ceased to be applicable in the new set up. After the State of Gujarat came into existence. After the State of Gujarat came into existence. The Division Bench also observed that it was therefore necessary for the State Government to issue the notification of 21/11/1960 bringing within the purview of the Gujarat Public Service Commission with effect from 1/05/1960 all recruitments to the posts of Clerks English Typists English Steno-typists English Stenographers and also posts of Gujarati Typists Gujarati Steno-typists and Gujarati Stenographers in connection with the different offices mentioned in Appendix B to the Rules. It is not even urged by the respondents that the Office of the Director of Ports was toe distinct office even during the bi-lingual Bombay State or prior to that. The above referred judgment applies in all fours of point of consideration in the instant case and it whould be held that on formation of the State of Gujarat the Office of the Director of Ports at Ahmedabad was not under the purview of the Public Service Commission. Even though the Notification dated 21/11/1960 was issued Office of the Director of Ports was not included in it and it was brought within the purview of Public Service Commission only by Government Resolution dated October 28 1463 Government Resolution dated 21/11/1960 was specifically issued in supersession of the previous Government Resolutions. For that reason also it should be held that the Office of the Director of Ports was not brought within the purview of the Public Service Commission for the recruitment of the clerks clerk-typists typists etc. It is also not the contention of the respon- dents that the Centralised Recruitment Scheme for the purpose of recruitment of the clerks clerk-typists typists etc. was applicable to the Office of the Director of Ports. ( 7 ) IN view of the above it is to be considered as to whether the recruitment of the petitioners was irregular. For the purpose of bring- ing within the purview of the provisions of Rule 30 of the statutory rules of 17/04/1970 regarding she fixation of the seniority it must be found that the eases of the petitioners were required to be regula- rised. The relevant words in the relevant provisions of Rule 29 are the following cases shall be regularised in the manner shown below which indicate that the initial appointment should be irregular. The relevant words in the relevant provisions of Rule 29 are the following cases shall be regularised in the manner shown below which indicate that the initial appointment should be irregular. This point was also under consideration of the Division Bench in Special Civil Application No. 767 of 1974 in the case of Smt. T. H. Pathak (supra) the Division Bench has observed that But the emphasis is on the words shall be regularised. It is but common sense to say that if there is nothing irregular in the initial appointment the Government employee concerned is not required to be regularised. In that case it was clearly held that the appointments were not irregular and were not required to be regularised. The said matter was taken up by the Government to the Supreme Court and the Supreme Court in the case of P. C. Patel v. Smt. T. H. Pathak AIR 1977 SC 101 agreed with the view expressed by the Division Bench of this Court. Referring to Rule 29 of the Gujarat Non-Secretariat Clerks Clerk-typists and Typists (Direct Recruitment Procedure) Rules 1970 it is observed by the Supreme Court that when appointments of the petitioners were not irregular the State Govern- ment erred in thinking that their service was governed by Rule 29 (1) (a ). Referring to the provisions of Rule 30 the Supreme Court observed that the said Rule was not applicable to the clerks of the Office of Director of Civil Supplies (Accounts) and therefore it was not permis- sible for the authorities concerned to determine their allotment and seniority under that rule. The attempt by the respondents to distinguish the judgment in the case of Smt. T. H. Pathak (supra) is nothing but a futile exercise. The decision of the respondents to fix the seniority of the petitioners as if they are in continuous service from 17/04/1970 in accordance with Rules 29 and 30 of the said Rules is not legal and proper and deserves to he set aside. ( 8 ) DURING the course of about 9 years of the pendency of this petition in this Court it appears that the respondents accepted the contentions of the petitioners and regularised the services of the petitioner No. 1-B. P. Chauhan and his seniority is accordingly fixed. ( 8 ) DURING the course of about 9 years of the pendency of this petition in this Court it appears that the respondents accepted the contentions of the petitioners and regularised the services of the petitioner No. 1-B. P. Chauhan and his seniority is accordingly fixed. Ho is even promoted as Head Clerk from 20/07/1988 Petitioner No. 2-J. S. Patel voluntarily retired from service on 1/10/1983 However he is entitled to the consequential benefits. ( 9 ) THE submissions made by Mr. M. S. Shah learned Counsel for the respondent No. 4 are required to be considered. Mr. Shah submits that the petitioners appeared for the regularisation of their services in the test held by the Public Service Commission under the Rules and therefore they are estopped from raising the above contention and specially the contention about the regular appointment. It is difficult to accept this submission. It is quite possible that the petitioners might have thought not to take any chance and appear in the test by the Public Service Commission for the regularisation of the services but that by itself does not deprive them of their legitimate right. Mr. Shah also made grievance that he should have been given more time to get instructions. The matter being very old it was adjourned previously at the request of Mr. Shah and therefore he cannot make any legitimate grievance for the adjournment. This submission should not have been recorded but as Mr. Shah specifically stated it is recorded in the judgment. The belated oral submission that all other clerks whose seniority is likely to be affected deserves to be rejected as the main grievance of the petitioner is against the Circular. ( 10 ) IN the case of Smt. T. H. Pathak (supra) Division Bench of this Court had considered the seniority of the petitioners of that case but the Supreme Court did not approve the directions by the High Court to compute the seniority on the basis of their service with effect from the respective dates of joining the service as Clerks. In view of the judgment of the Supreme Court the State Government may re- examine the question of fixing the seniority of the petitioners and take appropriate action. In view of the judgment of the Supreme Court the State Government may re- examine the question of fixing the seniority of the petitioners and take appropriate action. In view of the directions of the Supreme Court ant the facts and principles governing the service conditions of the petitioners being practically same this Court should pass order in terms of the order passed by the Supreme Court in the aforesaid decision. 11 In the result the decision of the respondents to consider the seniority of the petitioners from 17/04/1970 and the impugned order of reversion dated 15/11/1979 (Annex. B) are quashed and sot aside. The respondents should examine the question of seniority of the petitioners if at all not considered yet and take appropriate action to ameliorate their lot as temporary employees. Rule is made absolute accordingly to the aforesaid extent with no order as to costs. .