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Gujarat High Court · body

2021 DIGILAW 1076 (GUJ)

STATE OF GUJARAT v. A. D. DAMOR

2021-11-26

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. Both these petitions have been clubbed for its hearing by virtue of the order dated 23.3.2018 passed by the Coordinate Bench of this Court. As a result of this, the Court has taken up the hearing conjointly by treating Special Civil Application No.5656 of 2008 as a lead matter for sake of convenience. 2. In this lead matter, the respondent was working as a Senior Assistant at Community Health Center, Medhasan and was appointed under the Central Recruitment Scheme on 21.11.1984 under the office of Collectorate of Banaskantha and was placed at the office of Mamldatdar, Diyodar. On account of discontinuance of certain posts of Junior Clerk in the Collectorate of Banaskantha, the respondent was allotted to the office of Collector, Sabarkantha by virtue of order dated 13.10.1988 and was required to resume on 14.10.1988. However, on account of certain circumstances, he could not resume on 14.10.1988. The Collector, Sabarkantha had appointed the respondent as a Clerk in the office of the Mamldatdar, Vijaynagar and later on, since he did not resume, was appointed as a Clerk in Community Health Center, Medhasan on 3.12.1988. There, the respondent was required to resume duty on 4.12.1988, but he could not resume the duty and after a lapse of 4 months, he could resume the duty on 11.4.1989, by claiming benefits at par with juniors Shri D.B. Bodat and Shri R.P. Katara who have been granted benefit of continuity of service and were also given promotions accordingly, but, still the respondent was denied the benefit of continuity of service and as such, the respondent appears to have requested before the Tribunal to consider his service as continuous one from 16.4.1999 but was not promoted to the higher post though his juniors were already promoted. The respondent was placed at serial No.96 in the seniority list prevailed as on 1.1.1998 and Shri B.D. Bodat and Shri R.P. Katara have been placed at serial Nos.114 and 107 though they were found to be junior to the respondent and still promoted to the post of Office Superintendent and as such, the respondent was deprived of his legitimate claim. On the basis of such assertion, the respondent preferred an appeal before the Tribunal asking deem date available to him at part with his juniors who have already been promoted to the respective posts, as indicated above, and break in service may be condoned. On the basis of such assertion, the respondent preferred an appeal before the Tribunal asking deem date available to him at part with his juniors who have already been promoted to the respective posts, as indicated above, and break in service may be condoned. After considering the rival submissions and after hearing at length, learned Tribunal directed the petitioner to consider the claim of deem date, as canvassed by the respondent, whichever is admissible to the respondent right from joining of his service from the year 1984 and it is against this order passed by learned Gujarat Civil Services Tribunal in Appeal No.111 of 2004 dated 19.10.2007, the State authorities have filed present Special Civil Application under Articles 226 and 227 of the Constitution of India. 3. So far as the cognate matter, i.e. Special Civil Application No.18333 of 2017 is concerned, the facts are that respondent No.1 employee was initially appointed on 22.2.1989 by the Collector, Surendranagar under the Centralized Recruitment Scheme as Junior Clerk in the Revenue Department and he resumed on 28.2.1989. In view of the lack of posts, respondent No.1 was declared as surplus. Thereafter, by virtue of order dated 30.6.1989, Collector, Surendranagar under public interest had posted respondent No.1 to the Health Department from the Revenue Department and in view of that, he was relieved from the work on 30.6.1989 and joined the services in Health Department without any break on 1.7.1989. In this petition, the respondent resumed the duty without any break and as such, by virtue of the order dated 4.10.1991, services rendered from 28.2.1989 to 30.6.1989 was considered as continuous for the benefit of pension and leave encashment as well to consider his service from the date when the respondent joined the service in Health Department, i.e. from 1.7.1989. On 25.4.1996, the respondent employee made a representation to consider his earlier services, i.e. from 28.2.1989 to 30.6.1989 as continuous for calculating seniority towards his service performed under Health Department and by virtue of circular dated 23.12.1977 issued by the General Administration Department vide order dated 10.5.1996, it was ordered to consider his earlier service as indicated above for the purpose of considering seniority list in the cadre of junior Clerk/ Senior Clerk in the Health Department and accordingly, vide order dated 1.1.2002, seniority list was published, wherein respondent No.1 was placed at serial No.240. 4. 4. It is the case of the petitioner that pursuant to the seniority list, the Ministerial Staff Association had raised objection vide letter dated 19.4.2002 and further requested to initiate appropriate inquiry and sought guidance from the State Government, whereby it was informed that in the cases where employees were declared surplus in one department and thereafter, appointed in another department, in those cases, relevant date should be considered from the date of joining in the new department and further issued instruction to initiate process. As a result of said objection, guidance was sought, by virtue of which, an order came to be passed on 30.6.2006, whereby necessary changes were made and it was ordered to consider seniority from the date of appointment in the subsequent department, i.e. from 1.7.1989 in the present case. 5. Feeling aggrieved by such kind of action, one another employee namely Shri A.D. Damor, who preferred Appeal No.111 of 2004 before learned Civil Services Tribunal seeking deem date for considering seniority and learned Tribunal by virtue of the order dated 19/25.10.2007 was pleased to allow the appeal. Hence the State Government filed the petition against the said order, being Special Civil Application No.5656 of 2008, which is the lead matter here and the Court was pleased to admit the matter but did not grant any interim relief and as such, the benefit of deem date was actually given to said Shri A.M. Damor on 31.1.2009, subject to outcome of Special Civil Application No.5656 of 2008 and based upon said case, in the present petition also, benefit has been extended by allowing the appeal filed by the respondent in the cognate petition, which was numbered as Appeal No.77 of 2013, and order came to be passed allowing the appeal filed by the respondent herein on 1.8.2016 and it is against this order passed by learned Civil Services Tribunal, present petition is filed and since the common question had arisen, this petition was ordered to be heard along with the lead matter by virtue of the order dated 23.3.2018. 6. With the aforesaid background facts, both these petitions have come up for consideration before this Court for final disposal. 7. Learned Assistant Government Pleader Mr. 6. With the aforesaid background facts, both these petitions have come up for consideration before this Court for final disposal. 7. Learned Assistant Government Pleader Mr. K.M. Antani appearing on behalf of the petitioner – State authority has submitted that the order passed by learned Tribunal is under misconception about applicability of the circular in question and further the guidance was sought, by virtue of which, the employees were supposed to get seniority on the date of joining the subsequent department and not from the original date of joining of earlier department and as such, learned Tribunal has committed an error which deserves to be corrected. 8. Learned Assistant Government Pleader Mr. Antani has then pointed out from Special Civil Application No.18333 of 2017, which petition was basically argued by him, and drawn the attention to the reasons which are assigned by learned Tribunal and has tried to resist the claim of the respondent. It was contended further by Mr. Antani that learned Tribunal has committed an error in exercising the jurisdiction and though the respondents were appointed under the Centralized Recruitment Scheme, benefit of deem date would not have been granted by virtue of the specific instructions issued vide circulars dated 18.4.1978 and 19.4.1989 by the General Administration Department. Mr. Antani has further submitted that basically, the Tribunal has relied upon the case of Shri A.D. Damor, but has failed to take note that against the said decision, in case of Shri A.D. Damor, the State authority preferred the Special Civil Application which is awaiting final hearing and therefore, similar order in such a situation could not have been passed. However, after briefly resisting the claim of the respondents, it has been pointed out candidly that since interim relief was not granted by the Court in case of Shri A.D. Damor, due benefit has already been extended way back in 2009 itself and further fact that has not been able to be disputed is that the circular which has been relied upon about fixation of seniority of persons selected under Centralized Recruitment Scheme dated 23.12.1977, in parawise remarks, in para 4, same has been admitted and as such, based upon such candid submission, Mr. Antani has left further submissions, however has pointed out that overall findings which is assigned by the Tribunal is not a detailed finding and such brief exercise of discretion may be corrected. Antani has left further submissions, however has pointed out that overall findings which is assigned by the Tribunal is not a detailed finding and such brief exercise of discretion may be corrected. No further submissions have been canvassed. 9. Having heard learned Assistant Government Pleader Mr. K.M. Antani and having perused the relevant documents placed on the record of the petitions, it appears that detailed order was passed by learned Tribunal based upon the circulars issued by the State authorities and upon perusal of the circumstances, learned Tribunal found that the case is made out by the respondents. It was also observed by the Tribunal that the circular of 1989 is covering various issues, which also consider break in service, and if there is a break in service on account of closure of department or lack of post, retention of original seniority is permissible and as such, after assigning proper reasons, including non-granting of appropriate opportunities to the respondent in the lead matter, the Tribunal allowed the claim and following are the reasons which the Court would like to reproduced hereunder:- “8. Shri Raval submitted the amendment appeal memo changing the relief claimed in the earlier appeal memo on 8/12/2006. The main relief claimed in the revised appeal memo is not to cancel the financial benefits he received as like higher pay scale etc. On account of the deemed date and further that his deemed date of promotion in the cadre of Sr.Clerk should not be changed. 9. As we have mentioned earlier, the department of Health is relying mostly on two GRs-one issued on 18/4/78 followed by GR issued by the GAD on9/5/89 enunciating to the principle followed for determining the seniority of the persons who face break in services on account of some closure in the work for which they were employed and later re-employed in some other department. In the GRs of 1978 the persons who get accommodated after break in service in some other department, gets his refixed seniority with reference to the date of his joining services to the later departments. 10. The 1989 GR covers various aspects arising out of break in service because of closure of some activities of a department. In the GRs of 1978 the persons who get accommodated after break in service in some other department, gets his refixed seniority with reference to the date of his joining services to the later departments. 10. The 1989 GR covers various aspects arising out of break in service because of closure of some activities of a department. In the later circular it has specifically mentioned that the seniority of the persons recruited under the Centralized Recruitment Scheme will be regulated as peer the provision contained in various recruited rules relating to such recruitment. The rule position in this respect is that the persons recruited under the say C.R.S.even if there is break in service on account of closure of department or lack of posts etc. retain there original seniority. It seems to have been upheld in interpretation and clear enunciation by the policy of the Govt. The circulars of 1978 and subsequent circular of 1989 dealt with such persons who were not recruited under the C.R.S. though they were properly recruited under the legitimate procedure adopted by the administrative departments concerned. 11. It is true that Shri Soman, during the course of hearing on 19/12/06 argued that according to the Govt. Rule the persons. with break in services for want of post do retain all their pensionary benefits assuming that there is no break in services but it does not confer on him the benefit of seniority computed from his joining the services. This principle was followed in the case of Mr.Damor. He further pointed out that it is not that Shri Damor alone was singled out for being denied the seniority from the date of his first joining. The same principle was applied to many other cases. Miss Sanu Pathan, his advocate representing the appellant intervened and pointed out that Shri Damor was never given a personal hearing and the order of changing his seniority was made without him. Whatever might have been procedure followed by the department of Health and Medical Services and Medical Education, the fact remains that seniority of the person who were Centralised recruited and who for certain contingent reasons arising out of lack of work or post, face a break in services do retain their seniority when they are re accommodated in some other department. If we accept this accepted principle by the court and the Tribunal, then Shri Damor's claim to have the Deemed date on par with the date of promotion of his juniors stand established. This appeal has therefore merit the relief claimed. ORDER We therefore and direct the Commissioner, Health and Medical Services and Medical education to consider the request of Shri Damor for allowing him the Deemed date as would be admissible computing his seniority from the date of joining services to be 1984. Pronounced to-day i.e.19th day of October, 2007” 10. It appears that this order pursuant to which the lead matter was got admitted way back in may 2008, but prayer with regard to interim relief came to be specifically refused, against which, the State authority has not preferred any appeal and accepted the said position and on account of such, actual due benefit has also been extended to the respondent of the lead matter way back in 2009. Hence, the order passed by the Tribunal appears to have been exhausted. 11. So far as the cognate matter is concerned, it appears that on true interpretation of the Government Resolution dated 23.12.1977, which relates to fixation of seniority of persons, selected under the Centralized Recruitment Scheme, the Tribunal has examined the issue of respondent No.1 of the cognate petition and having clearly found that in absence of any break, this respondent is entitled to benefit and detailed reasons are also assigned while exercising such discretion. Additionally, it further appears that the aforesaid circular has been admitted in the remarks by the petitioner and has observed that on account of any administrative exigency or in public interest, if department is changing the employee, then in that case, original seniority will have to be considered and after analyzing the said circular and factual details, a detailed order is passed with proper reasons, to which the Court see no reason to interfered with. The very exercise of discretion undertaken by the Tribunal cannot be said to be perverse or suffers from vice of any patent illegality or material irregularity and as such, when the Tribunal appears to have exercised the discretion vested in law with proper reasons, and passed an order, such discretion in absence of any perversity normally be not interfered with. 12. 12. At this stage, the Court is mindful of the proposition laid down by the Hon’ble Supreme Court in the case of Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited and Another reported in (2016) 16 SCC 818 . The relevant observations contained in para 12 and 13, the Court has deemed it proper to reproduce hereunder since has taken assistance of it:- 12. In Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay it was held that the constitutional Courts are concerned with the decision making process. Tata Cellular v. Union of India went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional Courts can interfere if the decision is perverse. However, the constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa as mentioned in Central Coalfields. 13. In other words, a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision. 13. In addition to this, yet another decision of Hon’ble Apex Court in the case of West Bengal Central School Service Commission Vs. Abdul Halim reported in 2019 (0) AIJEL-SC 64500 contains the observations, which are quoted hereinbelow, and which would also clinch the issue and on the basis of such observations, this Court is not inclined to disturb the finding which has been arrived at by the authority below in absence of any perversity or material irregularity of any nature. Hence, Court see no reason to entertained the petition. 31. The sweep of power under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse. 32. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse. 32. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect. 14. In view of the aforesaid premises and in view of the circumstances which are detailed out, no useful purpose could be served to reverse the order in absence of any material irregularity and especially in view of the fact that in the lead matter, benefits have already been extended way back in 2009. Hence, both the petitions do not deserve to be entertained and in view of the lack of merit, the Court is inclined to dismiss the same. 15. Accordingly, both the petitions stand DISMISSED with no order as to costs. Rule is discharged. Interim relief, if any, stands vacated forthwith.