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Gujarat High Court · body

2007 DIGILAW 104 (GUJ)

VIJAYKUMAR HARIKISHAN PATHAK v. STATE OF GUJARAT

2007-02-19

H.K.RATHOD

body2007
H. K. RATHOD, J. ( 1 ) HEARD learned advocate Ms. Moksha Thakkar for learned advocate Mr. N. K. Majmudar appearing on behalf of petitioners and learned Government Pleader mr. Sunit Shah with learned A. G. P. Mr. Dave appearing on behalf of respondents - state Authorities. ( 2 ) THE brief facts of the present petitions are that the petitioners are working as Medical Officer Class-II with the respondent. The first and second higher pay scale as per recommendations of Tiku Pay commission available to the petitioners from the initial date of entry in service and also from the continuous officiation, but, respondents have not granted the said benefits from the date of joining in the service. No steps have been taken by the respondents to pay the said benefits to the petitioners. The pay fixation is also not carried out by the respondents. The petitioners are appointed as Medical Officer class-II bonded and they have been confirmed in service on long term basis pursuance to their passing of the GPSC examination, but, benefit of higher pay scale has not been granted from date of initial appointment, but, same has been granted from the date of passing the GPSC examination by the petitioner. Therefore, the group of petitions filed by the petitioners before this Court. ( 3 ) LEARNED advocate Ms. Thakkar also submitted that even on the basis of continuous officiation, petitioners are entitled the benefit of higher pay scale from date of joining or from the date of continuous officiation even that has also been denied to the petitioners. In case of Special Civil application No. 4503 of 2007, she submitted that by communication dated 21st July 2006 issued by the respondents informing that considering the six years completion of service on 14th November 1991 and thirteen years of completion of service on 14th november 1998 and nineteen years of service on 14th November 2004, the higher pay scale has been disbursed to the petitioners. But, learned advocate Ms. Thakkar submitted that initially, petitioners have appointed as Medical Officer Class-II bonded and petitioners have cleared the examination from GPSC in first attempt and by first trial, even though, benefit of higher pay scale from date of joining has been denied to the petitioners. Therefore, the present group of petitions are filed by the petitioners. ( 4 ) LEARNED advocate Ms. Therefore, the present group of petitions are filed by the petitioners. ( 4 ) LEARNED advocate Ms. Thakkar relied upon Para 24 to 27 of the decision of apex Court in case of O. P. GARG AND others ETC. , V/s. STATE OF U. P. AND others REPORTED IN AIR 1991 SC 1202 . "24. We agree with the above findings and accept the position that the service consists of permanent as well as temporary posts. The substantive vacancy has not been defined under the 1975 rules but as held by this Court in Dixit case there can also be a substantive vacancy in a temporary post which is part of the cadre. All temporary posts created under R. 4 (4) of the 1975 rules are additions to the permanent strength of the cadre and as such form part of the cadre. Appointments under R. 22 of the 1975 rules can be made to a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadre-strength the appointment against the said post has to be treated as substantive appointment. 25. There is no dispute that the seniority of a direct recruit, appointed to the post in service has to be determined from the date of continuous officiation in the service. The question for our determination is whether the seniority of a promoted officer is to be counted from the date of continuous officiation giving him. benefit of full period of officiation as claimed by Mr. Yogeshwar prasad or only for a maximum period of three years preceding the date of confirmation as provided by first proviso to R. 26 (1) (a) as argued by Mr. Satish Chandra. The High court has not followed either of the methods and has determined the seniority by giving benefit to a promotee of three years officiation preceding the date of availability of a permanent post. 26. We have given our thoughtful consideration to the arguments of the parties. This Court has time and again held that when an incumbent is appointed to a post in accordance with the Service Rules his seniority has to be counted on the basis of continuous length of service and not in reference to the date of confirmation. 26. We have given our thoughtful consideration to the arguments of the parties. This Court has time and again held that when an incumbent is appointed to a post in accordance with the Service Rules his seniority has to be counted on the basis of continuous length of service and not in reference to the date of confirmation. Even in the present case the promotees have been confirmed long after the availability of permanent vacancies. This Court in S. B. PATWARDHAN V/s. STATE OF maharashtra (1977) 3 SCR 775 : ( AIR 1977 SC 2051 ) observed that "confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies". A constitution Bench of this Court in DIRECT recruit CLASS II ENGINEERING officers ASSOCIATION V/s. STATE OF maharashtra (1990) 2 SCC 715 approved patwardhan s case and laid down the following propositions in this respect : (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. " 27. Keeping in view the scheme of the 1975 rules, we are of the view that first proviso to R. 26 (l) (a) of the 1975 rules which links the seniority with the date of confirmation is on the face of it arbitrary and as such violative of Art. 16 of the constitution of India. " 27. Keeping in view the scheme of the 1975 rules, we are of the view that first proviso to R. 26 (l) (a) of the 1975 rules which links the seniority with the date of confirmation is on the face of it arbitrary and as such violative of Art. 16 of the constitution of India. Since the recruitment to the service is from three sources the existence of a vacancy either permanent or temporary is the sine qua non for claiming benefit of continuous length of service towards seniority. The period of officiation /service which is not against a substantive vacancy (permanent or temporary) cannot be counted towards seniority. While striking down first proviso to R. 26 (1) (a) of the 1975 rules we hold that the continuous officiation /service by a promotee shall be counted for determining his seniority only from the date when a substantive vacancy against a permanent or temporary post is made available in his quota under the 1975 rules. " ( 5 ) LEARNED advocate Ms. Thakkar also relied upon Para 44 of the decision of apex Court in case of The Direct Recruit class-II Engineering Officer s Association and others V/s. State of Maharashtra and others reported in AIR 1990 SC 1607 . "44. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the; subject. , (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent deputy Engineers as well as the officiating deputy Engineers under the State of maharashtra belonged to the single cadre of deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position. With respect to Writ Petition No. 1327 of 1982, we further hold: (K) That a dispute raised by an application under Art. 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent Court by a judgment which became final. " ( 6 ) IN view of aforesaid submissions made by learned advocate Ms. Thakkar and considering the fact that benefit of higher pay scale has been denied to the petitioners from date of joining as per recommendations made by Tiku Pay Commission. " ( 6 ) IN view of aforesaid submissions made by learned advocate Ms. Thakkar and considering the fact that benefit of higher pay scale has been denied to the petitioners from date of joining as per recommendations made by Tiku Pay Commission. ( 7 ) IN view of these facts, it is open for the petitioners to make detailed representation to the respondents claiming the aforesaid benefits as per recommendations made by Tiku Pay commission within a period of one month from the date of receiving the copy of the said order. ( 8 ) AS and when, the respondents received such representation from the petitioners, it is directed to the respondents to consider the representation of the petitioners and also examine the grievance of the petitioners to have higher pay scale benefits from the date of joining or from continuous officiating as per decision of Apex courts as referred above and pass appropriate reasoned order after considering the observations made by Apex Court in aforesaid two cases within a period of three months from the date of receiving such representation from the petitioners and communicate the same to the petitioners immediately. ( 9 ) IN view of above observations and direction, present petition is disposed of without expressing any opinion on merits. Direct service is permitted. ( 10 ) HOWEVER, in case, if, ultimate decision of the respondent - authority is against the petitioner, it is open for the petitioner to challenge the same before appropriate forum in accordance with law.