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2015 DIGILAW 482 (GUJ)

Prashant Piyushkumar Joshi v. State of Gujarat

2015-04-24

ABHILASHA KUMARI

body2015
Judgment Abhilasha Kumari, J. 1. Rule. Mr. Swapneshvar Goutam, learned Assistant Government Pleader waives service of notice of Rule for the respondents. On the facts and in the circumstances of the case and with the consent of the learned Counsel for the respective parties, the petition is being heard and decided finally. The challenge in this petition under Art. 226 of the Constitution of India is, inter alia, to the action of the respondents in not including the name of the petitioner in the Seniority List dated 1-1-2009 and, consequently, not granting him the deemed date on the promotional post, especially when persons appearing after Serial No. 567 in the Seniority List dated 1-1-2009 were promoted to the next higher post of Senior Clerk. 2. Briefly stated, the factual matrix in which the petition has been filed is that pursuant to an advertisement published by respondent No. 2, Resident Commissioner, Gujarat Bhavan, New Delhi, on 22-4-1990, in the "Navbharat Times", inviting applications for eight posts of Clerk and three posts of Telephone Operator-cum-Receptionist, the petitioner made an application dated 1-5-1990, for appointment on the post of Clerk/Typist. It was stated in the advertisement that the recruited Clerks may be assigned filing work, typing work or other office work in Gujarat Bhavan. Pursuant to the application made by the petitioner, respondent No. 2 issued an interview call letter dated 16-5-1990 to the petitioner, with reference to his application for the post of Clerk/Typist and Telephone Operator-cum-Receptionist. Pursuant to the interview, the petitioner was successful in securing the appointment and by a letter dated 19-12-1990, the petitioner was informed that, with regard to his application dated 1-5-1990, regarding the post of Office Clerk/Typist, he has been selected for temporary appointment. The petitioner was asked to report for duty within ten days from the issue of the said letter. Accordingly, the petitioner resumed his duties as Clerk/Typist on 24-12-1990. The petitioner was given an appointment letter dated 4-1-1991, in which it was mentioned that the appointment of the petitioner as Clerk (Pantry Clerk) is confirmed and the petitioner is on probation for a period of one year. It may be appropriate to mention that the word "Pantry Clerk" used after the word "Clerk" has been reflected for the first time in the above-mentioned order. It may be appropriate to mention that the word "Pantry Clerk" used after the word "Clerk" has been reflected for the first time in the above-mentioned order. However, the designation of the petitioner, in the said appointment letter, is mentioned as Clerk and the words "Pantry Clerk" are mentioned in brackets thereafter, so as to clarify that though the petitioner was appointed as a Clerk, he would have to perform duties in the pantry. On 19-12-1991, the probation period of the petitioner was extended for another six months with effect from 24-12-1991. Thereafter, an office order dated 11-6-1992 was issued, stating that on completion of the probation period on 24-6-1992, the petitioner was to be continued on the post of Pantry Clerk. The original designation of the petitioner as Clerk was not mentioned in this office order, before the words "Pantry Clerk". 3. The insertion of the words "Pantry Clerk" have led to me difficulties faced by me petitioner. On 31-8-2000, the petitioner wrote to respondent No. 1, requesting him for a transfer to Ahmedabad or Gandhinagar due to family circumstances. Respondent No. 1 acceded to the request of the petitioner and the petitioner was transferred to Ahmedabad and was appointed as a Store Clerk in the office of respondent No. 3, Superintending Engineer, Roads and Building Department of the State Government on 11-1-2001. Accordingly, respondent No. 2 relieved the petitioner on 23-10-2001, so as to enable him to join duties in the office of respondent No. 3. Respondent No. 3 issued an office Order No. 87 of 2002 dated 11-3-2002, wherein it is stated that the petitioner has been absorbed in the cadre of Clerk with effect from 24-12-1990 (the initial date of his appointment), subject to the conditions mentioned in the office order. One of the conditions is that if the petitioner passes the Pre-training Examination within the prescribed number of chances, his seniority would be counted from his initial date of appointment. In the case of the petitioner, he has passed the said examination in the first attempt. It is, therefore, his case, that his seniority ought to be counted from 24-12-1990, the initial date of his appointment, in the substantive post of Clerk. 4. It may be noted that there was some confusion prevalent in the minds of the respondents regarding the designation of "Pantry Clerk" given to the petitioner and similarly situated persons. It is, therefore, his case, that his seniority ought to be counted from 24-12-1990, the initial date of his appointment, in the substantive post of Clerk. 4. It may be noted that there was some confusion prevalent in the minds of the respondents regarding the designation of "Pantry Clerk" given to the petitioner and similarly situated persons. The petitioner had written to the respondents as far back as on 12-12-2001, after his transfer to Ahmedabad, expressing his willingness to write the Pre-training Examination. However, no decision was taken by the respondents regarding the necessity of the petitioner, and other similarly situated persons, for passing the examination, upto 18-6-2009, as is clear from a communication of the said date of respondent No. 1, a copy of which has been tendered by the learned Assistant Government Pleader and taken on the record of the case. Accordingly, the petitioner wrote the examination and passed in his first attempt, as is clear from the Notification dated 21-11-2009. Despite this, the respondents did not grant the petitioner his rightful place in me Seniority List, as per his initial date of appointment on 24-12-1990. The petitioner made a representation to respondent No. 2 dated 13-5-2013 (Annexure-L), for the grant of seniority from his initial date of appointment. The case of the petitioner, for the grant of seniority from his initial date of appointment, was recommended by respondent No. 2 vide communication dated 24-5-2013. The Assistant Resident Commissioner, Gujarat Bhavan, Ahmedabad, also recommended the case of the petitioner by a communication dated 10-6-2013, addressed to the office of respondent No. 2. In addition thereto, the Executive Engineer, Roads and Building Department, wrote a letter dated 21-6-2013, recommending the case of the petitioner. A further recommendation has been given by the Superintending Engineer by his letter dated 29-6-2013. In all these letters of recommendation, the officers concerned have stated that me substantive appointment of the petitioner is in the post of the Clerk, therefore, as he has passed me Pre-training Examination in the first attempt, he ought to be granted seniority from the initial date of his appointment. 5. Ignoring the above recommendations, respondent No. 1 did not grant seniority to the petitioner as per his initial date of appointment, but placed him at Serial No. 754 in the Seniority List dated 10-10-2014, prepared during the pendency of the present petition. 5. Ignoring the above recommendations, respondent No. 1 did not grant seniority to the petitioner as per his initial date of appointment, but placed him at Serial No. 754 in the Seniority List dated 10-10-2014, prepared during the pendency of the present petition. According to the petitioner, he ought to have been placed immediately after serial No. 567. While placing the name of the petitioner at Serial No. 754 in the Seniority List dated 10-10-2014, the respondents have ignored the entire period of service of the petitioner with effect from his initial date of appointment, that is from 24-12-1990, to his transfer as Store Clerk in the Roads and Building Department in the year 2001, thus, depriving him of more than ten years of seniority. Aggrieved by this action of the respondents, the petitioner has approached this Court. 6. Mr. Asim Pandya, learned Advocate for Mr. Manan V. Bhatt, learned Advocate for the petitioner, has submitted that the post advertised by respondent No. 2 in the advertisement was that of Clerk. In the said advertisement, the words "Pantry Clerk" were not mentioned and neither were applications invited for such a post. Further, in the interview call letter, the designation for the post was mentioned as Clerk. Similarly, in the appointment letter, the designation was mentioned as Clerk. The petitioner was given the pay-scale of the post of Clerk at the time of his appointment. The cadre, pay-scale and duties of the petitioner are same as those persons who are included in the Seniority List. Further, the petitioner mentioned in his letter of resuming service that he was reporting for duty to the post of Clerk. It is submitted that the substantive post for which the petitioner has been recruited is that of Clerk, as there is no sanctioned post of "Pantry Clerk" in the establishment of the respondents, therefore he ought to have been given seniority from the date of appointment. 7. It is contended that the words "Pantry Clerk" were inserted after the word "Clerk" in the appointment letter issued by respondent No. 2 dated 4-1-1991, as an indication to show that the petitioner shall be asked to perform duties in the pantry. However, that would not change the substantive post of the petitioner, which is that of Clerk. The petitioner was transferred to the office of respondent No. 3 and was appointed as a Store Clerk. However, that would not change the substantive post of the petitioner, which is that of Clerk. The petitioner was transferred to the office of respondent No. 3 and was appointed as a Store Clerk. Still, however, the substantive appointment of the petitioner is that of Clerk. It is contended that even as per the office Order No. 87 of 2002 dated 11-3-2002, it is clear that once the petitioner passes the Pre-training Examination, he is entitled to be given seniority with effect from his initial date of appointment on 24-12-1990. 8. The learned Advocate for the petitioner has relied upon the Gujarat Non-Secretariat Clerks, Clerk/Typists (Training and Examination) Rules, 1970, wherein by an amendment to Rule 8, it has been inserted that a candidate who is appointed as a Clerk or Clerk-Typist subject- to undergoing training and/or passing the examination shall get seniority from the date of joining service if he completes the post-training and passes the examination as prescribed in Rule 7. It is submitted that these rules were amended pursuant to a judgment of this Court in the case of Safimiya G. Malek v. State of Gujarat, reported in 1992 (1) GLR 704 . This amendment has been given retrospective effect, therefore, it covers the case of the petitioner. It is next submitted that even if the case of the petitioner is considered under the unamended Rules, he would be entitled to receive seniority from his initial date of appointment. 9. It is next submitted on behalf of the petitioner, that by not granting seniority to the petitioner as per his initial date of appointment, respondent Nos. 1 and 3 have violated the fundamental rights of the petitioner under Arts. 14, 16, 19(1)(g) and 21 of the Constitution of India, as their action would directly affect his service conditions. It is submitted that this action of the respondents is discriminatory in nature, as three similarly situated persons, whose examples the petitioner has given in Paragraph 3 of the affidavit-in-rejoinder, have been granted seniority as per their initial dates of appointment. Those three persons were appointed as Clerk (Swagat Clerk) (Receptionist), Store Clerk and Telephone Operator in Gujarat Bhavan under respondent No. 2, but upon their transfer to Ahmedabad/Gandhinagar, they were granted seniority from their initial dates of appointment. The same is the case of the petitioner, but he has not been granted this benefit. 10. Those three persons were appointed as Clerk (Swagat Clerk) (Receptionist), Store Clerk and Telephone Operator in Gujarat Bhavan under respondent No. 2, but upon their transfer to Ahmedabad/Gandhinagar, they were granted seniority from their initial dates of appointment. The same is the case of the petitioner, but he has not been granted this benefit. 10. It is submitted that great injustice has been meted out to the petitioner in not granting him the seniority that he is entitled to, therefore, the prayers made in the petition may be granted. 11. The petition has been vehemently opposed by Mr. Swapneshvar Goutam, learned Assistant Government Pleader, by submitting that if the appointment order of the petitioner is perused, it will be seen that it mentions his designation as Clerk (Pantry Clerk). The initial appointment of the petitioner was, therefore, as a "Pantry Clerk", therefore, it cannot be said that he is a Clerk and not a "Pantry Clerk". It is further submitted that upon his transfer to Ahmedabad, the petitioner was appointed as a Store Clerk under respondent No. 3. It is submitted that seniority could have been granted to the petitioner only when he passes the Pre-training Examination, which he did in the year 2009, therefore, seniority could only have been granted from the date of his passing the examination. 12. The learned Assistant Government Pleader has relied upon the communication dated 6-4-2015, addressed by the Superintending Engineer, Roads and Building Department, Circle No. 1, to the Superintending Engineer, Ahmedabad City, wherein it is clarified by the author of the letter that the petitioner can be granted seniority from the date of his passing the Pre-training Examination only. On the strength of the above submissions, it is prayed that the petition be dismissed. 13. This Court has heard learned Counsel for the respective parties at length, perused the averments made in the petition, the pleadings of the parties and the documents annexed thereto. 14. The nature of the post to which the petitioner was appointed is clear from the advertisement published by respondent No. 2. As per the said advertisement, applications were invited from interested candidates for the following posts: Sr. No. Name of Post Number of Posts 1 Clerk 8 2 Telephone Operator-cum-Receptionist 3 15. This advertisement does not; mention any post by the designation of "Pantry Clerk", nor does it mention (Pantry Clerk) after the word Clerk. As per the said advertisement, applications were invited from interested candidates for the following posts: Sr. No. Name of Post Number of Posts 1 Clerk 8 2 Telephone Operator-cum-Receptionist 3 15. This advertisement does not; mention any post by the designation of "Pantry Clerk", nor does it mention (Pantry Clerk) after the word Clerk. It is stated in the advertisement that the recruited Clerks may be assigned filing work, typing work or other office work in Gujarat Bhavan, as required. It is, therefore, clear from the advertisement itself, that the recruitment was for the post of Clerk and Telephone Operator-cum-Receptionist, with a stipulation that those recruited as Clerks may be assigned other duties, as mentioned in the advertisement, which may not strictly fall under the definition of clerical duties. This aspect is clear from the record, as persons appointed as Clerks were given duties as required in Gujarat Bhavan, such as "Swagat Clerk" (Receptionist), "Store Clerk" and "Pantry Clerk", as in the case of the petitioner. The nomenclature is more an indication of nature of duties assigned to the persons appointed as Clerks, rather than to their substantive posts which are that of Clerk. 16. It is not in dispute that the pay-scale of the petitioner is equivalent to that of a Clerk. The call letter received by the petitioner to appear in the interview pursuant to his making an application for the post of Clerk/Typist mentioned the post of Clerk/Typist and Telephone Operator and not "Pantry Clerk". The letter dated 19-12-1990, issued by respondent No. 2, informing the petitioner that he has been selected for temporary appointment also mentions the post of Office Clerk/Typist and not "Pantry Clerk". The petitioner resumed duties as Clerk/Typist by way of his joining letter on 24-12-1990. It appears that the entire confusion in the minds of the respondents has arisen due to the insertion of the words "Pantry Clerk", in brackets, after the word Clerk, in the appointment letter of the petitioner dated 4-1-1991. A specific query has been addressed by this Court to the learned Assistant Government Pleader, whether there is any sanctioned post of "Pantry Clerk" available with the respondents, or not. Upon instructions from Shri Haresh Jashbhai Patel, Executive Engineer, Ahmedabad City Division, Mr. Swapneshvar Goutam, learned Assistant Government Pleader, has stated that there is no sanctioned post of "Pantry Clerk" in the establishment of the respondents. Upon instructions from Shri Haresh Jashbhai Patel, Executive Engineer, Ahmedabad City Division, Mr. Swapneshvar Goutam, learned Assistant Government Pleader, has stated that there is no sanctioned post of "Pantry Clerk" in the establishment of the respondents. It is, therefore, an undisputed fact that the substantive post of the petitioner is that of Clerk and the words "Pantry Clerk" have been inserted in the order of appointment, in order to describe the nature of duties to be performed by the petitioner, which were in the pantry of Gujarat Bhavan. The petitioner is, for all intents and purposes a Clerk, and his pay-scale is that of Clerk as well, which is clear from the record. The learned Assistant Government Pleader has not been able to produce any document to the contrary. 17. At this stage, reference may be made to the Gujarat Non-Secretariat Clerks and Clerk-Typists (Training and Examination) (Amendment) Amending Rules, 1994. In Rule 8 of the said Rules, an amendment has been made by inserting sub-rule (3) which shall be taken to have been inserted retrospectively with effect from 10-6-1970. The newly inserted sub-rule (3) reads as below: "(3) Notwithstanding anything contained in clause (a) of sub-rule (1) of Rule 21 of the Gujarat Non-Secretariat Clerks, Clerk-Typists and Typists (Direct Recruitment Procedure) Rules, 1970, a candidate who is, appointed as a Clerk or a Clerk-Typist subject to undergoing training and/or passing the examination shall get seniority from the date of joining service, if he completes the post training and passes the examination as prescribed in Rule 7 within three chances (Four chances in case of Scheduled Castes or Scheduled Tribe candidate): Provided that seniority of a candidate as referred to above shall be counted from the date of passing the post training examination, if he fails to pass the examination as prescribed in Rule 7 within three chances (four chances in case of a Scheduled Castes or Scheduled Tribes candidate)." (Emphasis supplied) 18. Sub-rule (3) stipulates that a candidate who has been appointed as a Clerk or a Clerk/Typist shall be given seniority subject to undergoing training or passing the examination from the date of his joining service, if he completes the training or passes the examination as prescribed in Rule 7, within three chances (four chances in case of Scheduled Castes and Scheduled Tribes candidate). The petitioner has passed the Pre-training Examination in the first attempt, which is an undisputed fact. Therefore, as per sub-rule (3) of Rule 8 of the above Rules, he ought to have been granted seniority from the date of his appointment on 24-12-1990. The proviso to the above sub-rule would not apply to the petitioner as it states that if a candidate fails to pass the examination within three chances (four chances in case of Scheduled Castes and Scheduled Tribes candidate), his seniority would be counted from the date of passing the said post-training examination. Admittedly, as the petitioner has passed the examination in the first attempt, the proviso would not be applicable to him. 19. The learned Assistant Government Pleader has referred to the so-called clarificatory letter dated 6-4-2015, which is an internal correspondence between Superintending Engineer, Roads and Building Department, Circle No. 1 and Superintending Engineer, Ahmedabad City, wherein the author of the letter has stated that the petitioner can be given seniority only from the date of his passing the examination. Not only has this communication been made during the pendency of the petition, its author does not appear to have taken into consideration the Gujarat Non-Secretariat Clerks, Clerk-Typists (Training and Examination) Rules, 1970, as amended by the insertion of sub-rule (3) to Rule 8, as already observed hereinabove, which specifically states that a candidate who has passed the examination shall be granted seniority from his initial date of appointment. This communication, therefore, is not in consonance with the Rules, and hence, deserves to be disregarded. 20. Several communications have been issued by various officers, recommending the case of the petitioner for grant of seniority from his initial date of appointment, which are to be found at running Pages 60, 72, 73, 74, 75, 76, 77 and 78 of the petition. In all the above communications, the officers concerned have reiterated that the substantive post of the petitioner is that of Clerk. The petitioner has been appointed as Clerk and as he has passed the examination, he should be granted seniority from the date of his initial appointment. However, the respondents have ignored the above recommendations of their own officers and have issued a Seniority List dated 10-10-2014, during the pendency of the present petition, wherein the seniority of the petitioner is shown at Serial No. 754. However, the respondents have ignored the above recommendations of their own officers and have issued a Seniority List dated 10-10-2014, during the pendency of the present petition, wherein the seniority of the petitioner is shown at Serial No. 754. The said seniority has been granted from the date when the petitioner has passed the examination and not from his initial date of appointment, thereby depriving him of the benefits of over ten years of service. 21. No legally justifiable reason for this arbitrary action has been disclosed by the respondents in the affidavit-in-reply, the affidavit-in-sur-rejoinder, and the further affidavit filed by them. The respondents are harping only on one thing, and that is, that in the appointment letter issued by respondent No. 2, it is mentioned that the petitioner was appointed as Clerk (Pantry Clerk). As has already been discussed hereinabove, the post advertised by respondent No. 2 is that of Clerk and the substantive appointment of the petitioner is that of Clerk. The words "Pantry Clerk" have been incorporated in brackets by respondent No. 2 in order, after the word Clerk, to describe the nature of duties to be performed by the petitioner in Gujarat Bhavan, which are in the pantry. This would not change the substantive nature of appointment of the petitioner, especially when it is not disputed that there is no sanctioned post of "Pantry Clerk" in the establishment of the State Government. In this view of the matter, the contention of the learned Assistant Government Pleader to the effect that the petitioner should be treated as a "Pantry Clerk" and his seniority should be given from the date of his passing the examination, is without substance. On the contrary, it is in contravention of the documents on record, especially the Rules. 22. The learned Advocate for the petitioner has submitted that in the cases of three other persons, similarly situated as the petitioner, the respondents have granted seniority from their initial dates of appointment. This, aspect is mentioned in Paragraph 3 of the affidavit-in-rejoinder filed by the petitioner. It is mentioned that one Mr. Gaurang Dave was appointed as a Telephone Operator on 26-12-1990 in Gujarat Bhavan, after the date when the petitioner was appointed. He was transferred from Gujarat Bhavan to City Circle Office, Ahmedabad, in the year 1998-1999. Mr. Manish Joshi was appointed as Store-cum-Correspondence Clerk in Gujarat Bhavan on 4-1-1991. It is mentioned that one Mr. Gaurang Dave was appointed as a Telephone Operator on 26-12-1990 in Gujarat Bhavan, after the date when the petitioner was appointed. He was transferred from Gujarat Bhavan to City Circle Office, Ahmedabad, in the year 1998-1999. Mr. Manish Joshi was appointed as Store-cum-Correspondence Clerk in Gujarat Bhavan on 4-1-1991. This gentleman was transferred to Ahmedabad in 2001, under the City Circle Office, Ahmedabad. The third gentleman is one Shri Pradeep Dave appointed as a Receptionist (Swagat Clerk) in Gujarat Bhavan in the year 1998. He was also transferred to Ahmedabad in the year 2006. All these three persons were originally appointed in Gujarat Bhavan, Delhi and upon their transfer to Ahmedabad, they were given seniority from the dates of their initial appointments after their having passed the Pre-training Examination. It is the assertion of the petitioner that the same treatment ought to have been meted out to him. By not doing so, the petitioner has been singled out for hostile discrimination. 23. In the affidavit-in-sur-rejoinder filed by the respondents, an attempt has been made to answer the allegation of the petitioner regarding discrimination. It is stated in Paragraph 4 of the said affidavit that those other employees working in Gujarat Bhavan have been given seniority from their respective dates of appointment as they have given an option for the cadre of Manager, Grade-2 (Class-III) at Government Gruh establishment. It is stated that the petitioner has not given any such option, therefore, he cannot get seniority from the date of his appointment. 24. The Court has addressed a specific query to the learned Assistant Government Pleader regarding the Rules which provides for giving an option to all Clerks to work under Gujarat Atithi Gruh (Circuit House). The Court has further asked the learned Assistant Government Pleader to clarify which rule provides that if a Clerk does not give an option, his seniority would not be recommended from the date of his initial appointment, even if he has passed the Pre-training Examination in the first attempt. The learned Assistant Government Pleader states, upon instructions, that there are no such rules. It is, therefore, clear that the respondents have accorded discriminatory and arbitrary treatment to the petitioner by treating him unequally from other similarly situated persons, for totally unconvincing and unjustifiable reasons. 25. The petitioner was transferred to Ahmedabad in the year 2001. The learned Assistant Government Pleader states, upon instructions, that there are no such rules. It is, therefore, clear that the respondents have accorded discriminatory and arbitrary treatment to the petitioner by treating him unequally from other similarly situated persons, for totally unconvincing and unjustifiable reasons. 25. The petitioner was transferred to Ahmedabad in the year 2001. However, from 2001 till 18-6-2009, the respondents did not take a final decision whether the petitioner, and other similarly situated persons appointed in Gujarat Bhavan, were required to pass the Pre-training Examination, or not. It is only after a decision was taken on 18-6-2009, by the State Government, a copy of which has been taken on record by this Court, that the petitioner wrote the examination on 14-9-2009 and 15-9-2009, and cleared it in the first attempt. The result of the petitioner was arrived by a Notification dated 21-11-2009 of the Sardar Patel Institute of Public Administration. Though, there is a delay of about eight years between the transfer of the petitioner to Ahmedabad from Gujarat Bhavan and his giving the examination, he cannot be held responsible for it, as no decision was taken regarding the requirement of giving the examination by the State Government upto 18-6-2009. However, this delay does not assume any significance in view of sub-rule (3) of Rule 8 of the Gujarat Non-Secretariat Clerks, Clerk-Typists (Training and Examination) Rules, 1970, which states that upon passing the examination within the prescribed three chances, the petitioner is entitled to receive seniority from the date of his initial appointment on 24-12-1990. This aspect is not denied by the respondents. The assertion to the contrary in the internal communication dated 6-4-2015 of the Superintending Engineer, Roads and Building Department, Circle No: 1, is therefore fallacious, as it is contrary to the said Rules. 26. Taking into consideration the entirety of the facts and circumstances of the case, in view of this Court, great injustice has been meted out to the petitioner by the respondents, in not granting him seniority from his initial date of appointment, thereby depriving him of the consequential results and fruits of such seniority. The prayers made in the petition, therefore, deserve to be granted. 27. The petition is allowed. The respondents are directed to give seniority to the petitioner from his initial date of appointment on 24-12-1990, with all consequential benefits, within a period of one month from today. The prayers made in the petition, therefore, deserve to be granted. 27. The petition is allowed. The respondents are directed to give seniority to the petitioner from his initial date of appointment on 24-12-1990, with all consequential benefits, within a period of one month from today. Rule is made absolute, in the aforesaid terms. Direct Service is permitted. Petition Allowed.