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2004 DIGILAW 168 (GUJ)

BHIKHUBHAI BHAJGOVIND DAVE v. STATE OF GUJARAT

2004-03-12

RAVI R.TRIPATHI

body2004
RAVI R. TRIPATHI, J. ( 1 ) 12th MARCH 2004 the petitioner is before this Court being aggrieved of order dated 08. 11. 1985, a copy of which is produced at Annexure c, whereby the petitioner was informed that his seniority will be considered only from the date on which he was appointed as Clerk, i. e. 21. 10. 1970. The facts of the case are that, the petitioner was selected under Centralised Recruitment Scheme and he was given first posting on 26. 03. 1968 at the Treasury Office, but then as there was no clear vacancy, on regular incumbent reporting for duty, the petitioner was asked to make room for him. Likewise, the petitioner was appointed in different departments for various duration. But every time he had to move out for one reason or the other. Finally, on 20. 10. 1970 he was appointed on a clear, vacant post of Junior Clerk, which has arisen on account of promotion of the earlier occupant, Shri C. G. Patel. The petitioner then continued in that Department without being further tossed. The petitioner was then promoted to the post of Senior Clerk in the year 1978. The petitioner continued to work as Senior Clerk. ( 2 ) THE department published a tentative seniority list, wherein the length of service of the petitioner was shown only from 21. 10. 1970 and not with effect from 26. 03. 1968. The petitioner made a representation contending that his seniority should be reckoned from 26. 03. 1968 and not from 21. 10. 1970. The representation of the petitioner was not accepted and even in the final seniority list which was published vide Circular dated 12. 10. 1976, the petitioner was accorded seniority only from 21. 10. 1970 and was placed at serial no. 93. Other clerks of the Department, who had joined prior to 21. 10. 1970 were placed at serial nos. 1 to 92. The contention of the petitioner is that, if the petitioner is granted seniority on the basis of continuous officiation from 26. 03. 1968, when he was first appointed, in the State Government service, in the Treasury Department, the name of the petitioner would be at serial no. 26. The petitioner filed an appeal on 03. 06. 1 to 92. The contention of the petitioner is that, if the petitioner is granted seniority on the basis of continuous officiation from 26. 03. 1968, when he was first appointed, in the State Government service, in the Treasury Department, the name of the petitioner would be at serial no. 26. The petitioner filed an appeal on 03. 06. 1982 against the final seniority list during the pendency of the appeal, as the petitioner did not hear anything from the Department, he approached this Court by filing Special Civil application No. 2333 of 1984. The said petition was heard and disposed of by this Court by judgement and order dated August 1/2, 1985. This Court after recording the facts in detail observed in that judgement and order that:". . . . THOUGH there is prima facie lot of substance in the first contention of Mr. Mehta as indicated above, I do not propose to express any final opinion on the same and it would be left to the second respondent-appellate authority to give proper relief to the petitioner in the facts and circumstances of the case having considered all the relevant material including the orders passed by the third respondent Director of Animal Husbandry at Annexure c collectively and the recommendations by him at Annexure h. ( 3 ) THE Court after considering other contentions of the learned advocate, representing the petitioner in that petition, observed that,". . . . THERE is no reason why the second respondent should not be directed to decide the pending appeal of the petitioner and to pass final orders thereon as soon as possible. Of course, it would be open to the second respondent to hear not only the petitioner but also the concerned employees whose names are mentioned in the final seniority list at Annexure g and who are sought to be superseded by the petitioner by getting his proper ranking in the seniority list of junior clerks at sl. no. 26 by pushing down all those employees who are shown at sl. nos. 26 to 92. These employees would naturally be adversely affected if the petitioners claim is accepted. It would, therefore, be open to the second respondent to hear all these concerned parties and after hearing them, the second respondent will decide the pending appeal of the petitioner which was moved on 3. 6. nos. 26 to 92. These employees would naturally be adversely affected if the petitioners claim is accepted. It would, therefore, be open to the second respondent to hear all these concerned parties and after hearing them, the second respondent will decide the pending appeal of the petitioner which was moved on 3. 6. 1982 and to decide the question whether the petitioner is entitled to be placed in the final seniority list of junior clerks at proper place after treating him to have continuously officiated as a junior clerk in the State service from 26. 3. 1968 as requested by him. The second respondent is directed to decide the pending appeal of the petitioner within a period of eight weeks of the receipt of this writ at his end. . . . . " ( 4 ) IT was pursuant to this direction that the appellate authority decided the appeal of the petitioner, which was pending with the authority and passed the order which is under challenge in this petition. ( 5 ) EARLIER, this matter was heard and decided by the Court by judgement and order dated 02. 12. 1997 wherein the Court was pleased to pass the following order:"in the result, this Special Civil Application is disposed of in the term that, the State of Gujarat through the Chief Secretary, is directed to constitute a high level committee consisted of Chief Secretary as Chairman of the same with the other members namely the Secretary and the Director of the Department concerned and Law Secretary and the petitioner shall make his representation of his grievances made in the Special Civil Application within a period of one month from the date of receipt of the certified copy of this order to the Chief Secretary and the committee shall decide the representation of the petitioner within a period of three months from the date of receipt thereof. . . . . " ( 6 ) THE High Level Committee which was directed to consider and decide the representation of the petitioner, decided the same by order dated 20. 07. 1998, a copy of which is placed at Annexure P3 to this petition. The petitioner, having received the same, approached this Court by Misc Civil Application No. 2015 of 1998 in Special Civil Application No. 1456 of 1986, which is heard and disposed of by order dated 27. 12. 2001. 07. 1998, a copy of which is placed at Annexure P3 to this petition. The petitioner, having received the same, approached this Court by Misc Civil Application No. 2015 of 1998 in Special Civil Application No. 1456 of 1986, which is heard and disposed of by order dated 27. 12. 2001. The petition is restored to file and directed to be notified for hearing in due course. That is how the petition is before this Court. 15th MARCH 2004 ( 7 ) THE learned advocate appearing for the petitioner submitted that the petitioner ought to have been granted seniority with effect from his first date of joining the Government service, i. e. 26. 03. 1968, more particularly, in light of the fact that the break in service of the petitioner was condoned by the competent authority by order dated 14. 09. 1973, which was subsequently amended by order dated 07. 07. 1975. A copy of order dated 07. 07. 1975 is at Annexure f (Collectively ). It is specifically mentioned therein that, out of total 184 days break in service, 47 days Earned Leave is adjusted and the remaining 137 days break in service extraordinary Leave Without Pay is granted. Thus, the break in service stands condoned. Order dated 14. 09. 1973 is also at Annexure f (Collectively ). It is stated therein that, the break in service stands condoned by adjusting earned Leave and extraordinary Leave without Pay, his service is to be treated as continuous one. The only difference in these two orders, dated 14. 09. 1973 and 07. 07. 1975 is that in the first order, the Earned Leave for 47 days is adjusted against the period from 28. 01. 1969 to 15. 03. 1969, whereas by order dated 07. 07. 1975, 47 days Earned Leave is adjusted in different spells. In fact, it is the first order which says that, the services of the petitioner be treated to be a continuous one. The learned advocate, placing heavy reliance on this fact submitted that once the services of the petitioner are treated to be continuous one, he should have been granted seniority and also the consecutive promotions on the basis of that seniority. The learned advocate, placing heavy reliance on this fact submitted that once the services of the petitioner are treated to be continuous one, he should have been granted seniority and also the consecutive promotions on the basis of that seniority. ( 8 ) THE learned advocate submitted that the authority has committed an error in holding that, the seniority of the petitioner is rightly fixed by the Director of Animal Husbandry with effect from 21. 10. 1970. The authority has also erred in holding that, the services rendered by the petitioner as Junior Clerk in other Departments prior to 21. 10. 1970 cannot be taken into account. The learned advocate very strenuously submitted that the authority has committed grave error in not taking into consideration the contents of letter no. 999 dated 28. 01. 1983 sent by the office of the Director of Animal Husbandry to the Under Secretary in response to the Government letter dated 19. 08. 1982 and also the reminder dated 07. 01. 1983. The learned advocate submitted that it was mentioned in letter (dated 28. 01. 1983) that Shri Dave may be given seniority from 26. 03. 1968, the date on which he joined the District Treasury Office for the first time. It was also mentioned in the said letter that necessary Government orders, for giving seniority may also be obtained. The learned advocate submitted that the authority has erred in applying Government Circular No. 1177-5166-K dated 23. 12. 1977 to the facts of the case of the petitioner. The learned advocate also submitted that the authority ought not to have accepted the submissions of the Deputy Director (Administration), who remained present on behalf of the Director of Animal Husbandry on 24. 10. 1985. The say of the Deputy Director that, the letter of the Director of Animal Husbandry dated 28. 01. 1983, by which, recommendation was made to accord seniority to the petitioner from an earlier date, was not sent by the Director of Animal Husbandry and that it was signed by some officer of his office, without approval of the Director of Animal Husbandry, did not deserve acceptance. 01. 1983, by which, recommendation was made to accord seniority to the petitioner from an earlier date, was not sent by the Director of Animal Husbandry and that it was signed by some officer of his office, without approval of the Director of Animal Husbandry, did not deserve acceptance. The learned advocate next submitted that, the view point, of the authority on this point that, any recommendation made in individual case by the Head of any Department is not final and the case is to be decided by the Government on merits, in accordance with the policy of the Government and it is not necessary for the Government to accept the recommendation made does not deserve to be accepted. ( 9 ) THE learned advocate for the petitioner placed reliance on the Government Circular dated 23. 12. 1977, a copy of which is produced at Annexure i to this petition. The title of the circular is "fixing of seniority of persons selected under the Centralised Recruitment Scheme". The said circular was issued by the Government, as it was brought to the notice of the Government that, while fixing seniority of the candidates selected under the Centralised Recruitment Scheme, para/ clause 21 (3) of the Government Notification No. GAD GS/ 19/bh/ 1170-K dated 17. 04. 1970 is not correctly interpreted by some of the Government offices. The Government therefore, issued clarification as under:"the underlying intention for fixing seniority of the clerks and clerk/typist selected under the Centralised Recruitment Scheme is that the seniority has to be reckoned from the date of of post training examination or the date of regular appointment, whichever is later. The seniority fixed so shall remain in the event of reallotment from one office to other office on administrative grounds, if there is no break in his service and his juniors in other offices have continued in service. "on a plain reading, this circular has no application to the facts of the case. In this case, the question of fixing the seniority, from the date of passing the post training examination, from the date of regular appointment, does not arise. It is true that the petitioner had passed his pre service training examination on 27. 10. 1967, which is prior to the date of his first appointment, i. e. 23. 06. 1968. In this case, the question of fixing the seniority, from the date of passing the post training examination, from the date of regular appointment, does not arise. It is true that the petitioner had passed his pre service training examination on 27. 10. 1967, which is prior to the date of his first appointment, i. e. 23. 06. 1968. The question which really arises for consideration is, as to when for the first time the petitioner was given appointment on regularly available post and the answer is, that, it was only on 20. 10. 1970, in the Animal Husbandry Department on a post of Junior Clerk which had fallen vacant, on the occupant being promoted to the post of Senior Clerk, the petitioner was appointed. Earlier it was only on stop gap, temporary, ad hoc basis, the appointments were given to the petitioner, to utilise his services, before he could be offered a regular appointment. The circular also provides that seniority so fixed shall remain undisturbed. The condition precedent for application of this principle is that, the reallotment of a candidate must be from one office to the other. The word used is, from one office to the other/ This necessarily means that the Department is the same. In the case of the petitioner, his first posting was in the treasury Office. Thereafter, he was placed with, administrator, Sardar Nagar Township. Then his services were utilised in the office of, the Government Photo Litho Press. Again the petitioner was appointed in the office of the Additional Collector (Rehabilitation). Thereafter, the petitioner had occasion to serve the office of the Mamlatdar, Sanand Famine Branch. So on and so forth. The petitioner was also posted in the office of the Mamlatdar, Viramgam Famine Branch and the deputy Collectors office, Flood Relief Branch. Finally it was the office of the Project officer under the Animal Husbandry Department in which he was appointed on a clear, regular vacancy. In view of that it cannot be said that the petitioner was allotted from one office to another of the same Department. Coupled with this there is yet another condition which is to be satisfied before implementing the policy of not disturbing the sorority. The condition is that there shall not be a break in service. In the case of the petitioner there was break of 184 days. Coupled with this there is yet another condition which is to be satisfied before implementing the policy of not disturbing the sorority. The condition is that there shall not be a break in service. In the case of the petitioner there was break of 184 days. Not only that, there is one more condition, which is required to be fulfilled for claiming the benefit of "not disturbing the seniority", i. e. "his juniors in other offices have continued in service. In view of so many condition being condition precedent which are not satisfied in the case of the petitioner the circular has no application to the facts of the present case. Therefore, the contention is not found acceptable. ( 10 ) THE learned Assistant Government Pleader, Mr. M. S. Rao submitted that the order passed by the Deputy Secretary, Agriculture and Rural Development Department dated 08. 11. 1985 (Annexure c) is passed after taking into consideration the policy of the Government, on the point, enunciated from time to time. He submitted that the authority is absolutely right in holding that the case of the petitioner is not similar to the cases cited. The petitioner placed reliance on the decision of this Court, in the matter of Smt. S. D. Desai and others Vs. State of Gujarat (Special Civil Application No. 1212 of 1977, decided on 02/15. 04. 1975) in the matter of Shri R. C. Patani Vs. Director of Education, Special Secretary, General Administration Department and others (Appeal No. 309 of 1978 decided by the Gujarat Civil Services Tribunal, Gandhinagar on 12. 11. 1980 ). Mr. Rao, the learned Assistant Government Pleader submitted that though the facts of the case of Shri R. C. Patani (supra) appear to be similar, there is difference, Mr. R. C. Patani was reappointed in the same department as is recorded in para 9 of the order, which reads as under:"according to the above finding of the Hon. Tribunal when a clerk relieved from one office is reallotted and reappointed by another office in the same Department and when the breaks are condoned the seniority which is already fixed in the Department is not to be disturbed. This is also the view of the GAD which is the rule making authority under the Government. This is also the view of the GAD which is the rule making authority under the Government. Shri B. B. Daves case for considering his services rendered under another Department for the purpose of seniority in the Animal Husbandry Department does not therefore deserve consideration. . . " ( 11 ) THE matter was considered by the High Power Committee and decided by order dated 20. 07. 1998. The High Power Committee, after setting out the facts of the case in detail including that of break in service and the period for which the petitioner served with various departments, also considered the fact that the said breaks are condoned under the prevalent Government policy and the services of the petitioner are treated to be, continuous one has then recorded that, this condonation of break and counting the service continuous one was, only for the purpose of pay, pension and leave benefits. The grounds for which the request of the petitioner to grant him seniority from 23. 06. 1968 is not accepted are found to be reasonable and acceptable on the test of propriety. Condoning break in service of the petitioner for limited purpose, i. e. pay, pension and leave and granting him seniority from the date on which he was not born on the cadre of the Department, are two different things. An order of granting seniority will be prejudicial and to the disadvantage of the persons who are already in service. Such an order could not have been passed without giving an opportunity to all those persons who were likely to be prejudiced. This Court by directing the authority to hear the appeal filed by the petitioner (dated 03. 06. 1982 ). Granting of continuity of service for the purpose of pay, pension and leave benefits is to cause only some financial burden. As a matter of policy the Government considers and grants continuity of service for a limited purpose, which is not to cause any prejudice to any existing employee of the Department. The authority was live to the fact that, the petitioner was firstly posted on 26. 03. 1968 in a particular Department. Thereafter, on seven occasions his services were utilised in various departments. Finally on eight time he was appointed against a clear vacancy of Junior Clerk. The authority was live to the fact that, the petitioner was firstly posted on 26. 03. 1968 in a particular Department. Thereafter, on seven occasions his services were utilised in various departments. Finally on eight time he was appointed against a clear vacancy of Junior Clerk. Thus, for all practical purposes, this was the first appointment of the petitioner, which can be said to be made on permanent basis. permanent means to last for a long time and in juxtaposition not on temporary appointment. All earlier appointments of the petitioner were, with prefixes like, on temporary basis, on stop-gap arrangement, on ad hoc basis. There was a prefix in the final appointment dated 07. 11. 1970, whereby the petitioner was appointed with effect from 20. 10. 1970. This appointment continued as it was on permanent basis. Therefore, he is rightly granted seniority from 20. 10. 1970. ( 12 ) IF the contention of the petitioner is accepted then the petitioner was appointed on 26. 03. 1968. Subsequently that post became non available, then the only consequence which is to follow is that the petitioner has to go home. Instead of that by way of practice followed by the Government, the persons selected under the Centralised recruitment Scheme are continued on selected list, until the posting is given on permanent basis. This is in the interest of all and more particularly the person like the petitioner. The posting given on temporary basis is only with a view to give an opportunity to the petitioner to serve the Department for as many as days for which the work is available. ( 13 ) AT this juncture, Government Resolution dated 02. 12. 1968 relating to, "period of break in service treating of as Extraordinary Leave" is required to be taken into consideration. By this Government Resolution, the Government has adopted a policy under which if there is a break in service of an employee who is already allotted to one Department/ Office, due to discontinuance of post and the employee is required to be allotted to other departments/ offices, the break in service is condoned by granting Extraordinary Leave. The Government has also prescribed the maximum limit of such break in service, i. e. 36 months. The Government has also prescribed the maximum limit of such break in service, i. e. 36 months. The Government Resolution prescribes that the seniority of such a candidate eligible for such concession should be fixed as per Clause/ Rule 38 of Government Notification No. GS-43k. BH Y 1167-K dated 18. 10. 1967. The relevant part of Clause/ Rule 38 is:". . . . THE period of service prior to regular allotment after passing the examination held at the end of training shall not be taken into account for fixing seniority. " ( 14 ) THE petitioner was given regular appointment only on 21. 10. 1970, because the other appointments were not regular, as they were given only as stop gap arrangement in various departments on the posts which were not available later on either because they were discontinued or the regular incumbent of the posts became available. ( 15 ) THE petition is contested by the respondents by filing two affidavits in reply. One affirmed on 24. 07. 1997 and the other one affirmed on 11. 11. 1997. More or less the grounds on which earlier two orders were passed are pressed into service. One whereby the appeal of the petitioner was rejected and the second one passed by the High Power Committee, which was directed by this Court to decide the case of the petitioner. ( 16 ) AN affidavit in rejoinder is filed to the aforesaid affidavits wherein the petitioner has pointed out the case of persons who were working in Dairy Development Department and were brought and allotted to the Animal Husbandry Department, when the said Dairy Development Department was closed. The petitioner has referred to the case of one Shri R. B. Pandya, who according to the petitioner was given seniority from the date of joining the services in the Dairy Development Department even on his joining the Animal Husbandry Department on closure of the Dairy Development Department. The case of Shri R. B. Pandya cannot be compared with the case of the petitioner because it was, the closure of the Dairy Development Department that the Government showing indulgence allotted the employees of that Department to Animal Husbandry Department with continuity of service, granting them seniority. The facts of the case of the petitioner are different. There was no closure of the Department. The facts of the case of the petitioner are different. There was no closure of the Department. In fact the petitioner was given only temporary appointment on availability of the posts and when those posts became non available the petitioner was given a break. Again on the post being available he was appointed. It was only in the year 1970 that he was appointed against a clear vacancy. Therefore, in the considered opinion of this Court, the petitioner is not able to make out any case of discrimination. Two sets of facts are different and have nothing in common. ( 17 ) IN view of the aforesaid discussion the case of the petitioner fails. The seniority granted to the petitioner from the date of his regular appointment in the Animal Husbandry Department is no way found to be unjust and improper. In the result, this petition fails. The same is dismissed. Rule is discharged. No order as to costs. .