Parmar Shaileshkumar Bipinchandra v. State of Gujarat
2021-07-22
A.Y.KOGJE
body2021
DigiLaw.ai
JUDGMENT : A.Y. KOGJE, J. 1. This petition under Article 226 of the Constitution of India is filed with prayers clause as under:- “8. (a) allow this petition with costs. (b) hold and declare that the petitioners are entitled for the benefit of continuity of service for the calculation of five years in the fixed pay scheme as petitioners have secured their place in the first merit list, revised merit list and waiting list and both the times appointed on the same post of Accountant, Deputy Accountant and Sub-Accountant by the respondent authorities and therefore, entitled for benefit of oral order dated 24.01.2017 passed by the Hon’ble High Court in Special Civil Application No. 16290 of 2016 as well petitioners are similarly situated employees of the respondent authorities. (c) direct the respondent authorities to give benefits of continuity of service for the calculation of five years in the fixed pay scheme giving benefit of oral order dated 24.01.2017 passed by the Hon’ble High Court in Special Civil Application No. 16290 of 2016 as all the petitioners have secured their place in the first merit list, revised merit list and waiting list and appointed on the same post of Accountant, Deputy Accountant and Sub-Accountant both the time by the respondent authorities. (d) direct the respondent authorities to give benefit of G.R. dated 18.01.2017 issued by respondent no. 1-Finance Department and G.R. dated 20.01.2018 issued by General Administration Department to the petitioners for the purpose of promotion, seniority and higher pay scale and also for retirement benefits at the time of superannuation. (e)............ (f)............” 2. This petition is filed by group of petitioners, who were appointed pursuant to the recruitment procedure on the post of Accountant, Deputy Accountant and Sub-Accountant. The procedure being conducted through the Joint Selection Committee. The petitioners being 191 in numbers, their individual facts may not be necessary, as the Court is called upon to decide upon the continuity of their services, which had broken because of challenge to the selection procedure and after rectification of the selection procedure under the directions of this court reappointed the petitioners. 3.
The petitioners being 191 in numbers, their individual facts may not be necessary, as the Court is called upon to decide upon the continuity of their services, which had broken because of challenge to the selection procedure and after rectification of the selection procedure under the directions of this court reappointed the petitioners. 3. Therefore, short facts of the petitioners’ case is that there was no fault on the part of the petitioners when they were appointed in the first selection procedure and were on the first merit list and also named in second selection list and given reappointment on the basis of revised merit list. Therefore, their services rendered in between two periods approximately comes to around 1½ to 2 years should also be taken into consideration while considering the continuous service when the petitioners case will be considered for getting benefit of having completed 5 years of service. 4. Learned advocate for the petitioners has drawn attention of this Court to the order passed by this Court in the petition where the selection procedure by which the petitioners were appointed was subject matter of challenge. This Court taking into consideration the case of the petitioners therein on the ground of wrong answer keys thought it fit to direct the department to reconsider the case of those petitioners. 5. However, the Department in its wisdom thought it fit to scrap the entire merit list prepared purportedly on the basis of wrong answer keys and prepared a fresh merit list on the basis of new or the corrected answer keys. In between, the petitioners services came to be terminated by termination order dated 11.04.2014 citing reasons therein predominantly in the interest of justice for all the candidates, who could not get the place in the merit list on account of wrong answer keys and those, who found place in the merit list on account of wrong answer keys. 6. Learned advocate for the petitioner submits that in both the selection process adopted by the respondent authority, the petitioners have found place in the merit list. Therefore, the termination of the service of the petitioners was merely an artificial break. 7.
6. Learned advocate for the petitioner submits that in both the selection process adopted by the respondent authority, the petitioners have found place in the merit list. Therefore, the termination of the service of the petitioners was merely an artificial break. 7. It is submitted that the wrong answer keys and preparation of merit list on the basis of such wrong answer keys cannot be attributed to the petitioners, and therefore, the petitioners cannot be made to lose their service of almost 1½ to 2 years on account of mistake of someone else. 8. Thereafter, the petitioners were given fresh appointment after completing the process of merit list and as the petitioners found their place in the revised merit list also, representation was made to the authorities by some of the co-employees. This representation came to be rejected and hence, those employees filed the petition before this Court and this Court had taken into consideration their case and allowed the petition directing that the petitioners’ service from the first date of appointment should be treated continuously and the break in service between termination and the appointment to be treated as extraordinary leave. The petitioners are claiming similar benefits, as the petitioners identically situated and there is no difference. 9. It is submitted that the decision in the writ-petition filed by the co-employees was challenged in LPA, however, the order of coordinate bench of this Court was confirmed even by the Division Bench. It is also submitted that even before the Apex Court the State did not succeed, and therefore, the order of this Court in the writ-petition of the co-employees is confirmed till the Apex Court. 10. Learned advocate for the petitioners submits that in unreported decision in LPA, the Division Bench of this Court had decided that when it is a matter of policy in those cases, the benefit which is annured in favour of the employees/petitioners should be made available to all employees regardless of they being before the Court being the petitioners or not.
Learned advocate for the petitioners submits that in unreported decision in LPA, the Division Bench of this Court had decided that when it is a matter of policy in those cases, the benefit which is annured in favour of the employees/petitioners should be made available to all employees regardless of they being before the Court being the petitioners or not. In this regards, the attention is also drawn to circular of G.A.D. dated 22.08.2014 to submit that even it is the policy of the State Government that the benefit which is available pursuant to the judgment of the Court, such benefit should be made available to all the employees and cannot be discriminated only to give benefit those petitioners, who have approached the Court. 11. The order dated 19.12.2019 by which the continuity was granted to the petitioners of the previous petition was restricted to only to the petitioners of Special Civil Application No. 16290 of 2016, which according to learned advocate, is very much against the policy of the State itself. 12. Learned advocate for the petitioners, therefore, submits that as the case of the petitioner of Special Civil Application No. 16290 of 2016, the petitioners’ case also deserves consideration for being treated to be continuously in service from the date of their first appointment. 13. Learned AGP opposes the petition by submitting that the petition does not deserve any consideration especially on the ground of delay. It is submitted that the order of 2nd appointment pursuant to the revised merit list was issued in the year 2014, but it is only in the year 2020, for the first time, the petitioners have agitated for continuity in service before this Court. In the meantime, much water has flown in so far as issue of seniority and the right on the basis of such seniority is crystallized and if the case of the petitioners are to be considered at this stage, then perhaps, those persons whose rights have been crystallized would also be affected. Learned AGP relies upon the decision of Apex Court in case of Union of India and Others vs. Tarsem Singh, (2008) 8 SCC 648 in support of his argument. 14. Learned AGP also submitted that the benefit, if at all to be given to the petitioners have to be restricted till period of three years prior to approaching this Court.
Learned AGP relies upon the decision of Apex Court in case of Union of India and Others vs. Tarsem Singh, (2008) 8 SCC 648 in support of his argument. 14. Learned AGP also submitted that the benefit, if at all to be given to the petitioners have to be restricted till period of three years prior to approaching this Court. For that purpose also, learned AGP relies upon the decision of Apex Court in case of Tarsem Singh (supra). Learned AGP drew attention of this Court to the decision taken in the case of petitioners of Special Civil Application No. 16290 of 2016 and submitted that for the reasoning given therein the order itself, the State was justified in restricting the benefit of those decisions only to the petitioners. The petitioners having approached this Court belatedly cannot be given the benefit of the said decision. 15. Learned AGP, thereafter, relied upon the decision of this Court passed in Special Civil Application No. 6044 of 2014 where this Court while dealing with identical issue has declined the benefit of continuity only on the ground that it will affect the seniority of all the appointees pursuant to the revised list and therefore, the benefit was not granted. 16. As against this, in rejoinder, learned advocate for the petitioners has drawn attention of this Court to the facts and circumstance under which the CAV judgment in Special Civil Application No. 6044 of 2014 was rendered particularly, as the petition was filed at the behest of those petitioners, who were though in the first merit list did not find place in the revised merit list. It is further pointed out that the decision passed in CAV judgment of Special Civil Application No. 6044 of 2014 was taken in appeal, wherein the Division Bench while allowing the appeal had directed that the appointment to be given to those petitioners also, whose names had not reflected in the revised merit list, however, their seniority appropriately placed at the bottom against which challenge by the State in the Apex Court was failed. 17. Having considered the rival submissions made by the learned advocates for the parties, there are in all 191 petitioners which can be separately divided into three parts depending upon their posts of appointment viz. Accountant, Deputy Accountant and Sub-Accountant.
17. Having considered the rival submissions made by the learned advocates for the parties, there are in all 191 petitioners which can be separately divided into three parts depending upon their posts of appointment viz. Accountant, Deputy Accountant and Sub-Accountant. In case of posts of Accountant, the relevant dates are as under:- Designations Date of First Appointment Date of Cancellation of Appointment Date of Second Appointment after revised merit list Accountant 26.09.2012 11.04.2014 28.05.2014 15.04.2014 19.07.2014 08.09.2014 Deputy Accountant 26.09.2012 11.04.2014 28.05.2014 26.06.2013 15.04.2014 19.07.2014 15.09.2014 15.04.2015 Sub Accountant 01.10.2012 11.04.2014 29.05.2014 22.07.2013 15.04.2014 03.06.2014 19.07.2014 15.09.2014 With the aforesaid categories the question that comes up for consideration is as to whether the petitioners are entitled to continuity in service from the date of their first appointment on the basis of first merit list despite the cancellation of their appointments and within a short span of their reappointment on the basis of revised merits list. In short, whether the 2nd appointment order on the basis of revised merit list to be treated as fresh appointment in the establishment of the State Government. 18. The root lies in the decision of the respondent to terminate the services of the petitioner on the basis of decision of this Court passed in Special Civil Application No. 14312 of 2013 with Special Civil Application No. 14313 of 2013 in which on the basis of submissions made on behalf of the State in the affidavit to indicate that the selection list and the wait list is to be modified. It appears that the first merit list was challenged on the ground that the said merit list was prepared on the basis of question papers of the examination were evaluated on the basis of wrong answer keys, on account of the observations of this Court and order dated 11.04.2014 came to be passed, canceling the merit list as well as appointment orders which included the appointment orders of the petitioners. While doing so, it was observed in the order dated 11.04.2014 that:- “(3) Considering the representations received regarding defect in the answer keys of several questions in the question papers of the competitive examination of the accountant, the judgment dated 08.08.2013 in Sp. C.A. No. 12500/2013 and dated 20.12.2013 in Sp.
While doing so, it was observed in the order dated 11.04.2014 that:- “(3) Considering the representations received regarding defect in the answer keys of several questions in the question papers of the competitive examination of the accountant, the judgment dated 08.08.2013 in Sp. C.A. No. 12500/2013 and dated 20.12.2013 in Sp. C.A. No. 14312/2013 and 14313/2013 of the Hon'ble High Court of Gujarat, Joint Selection Committee, Finance Department, in accordance with letter dated 02.04.2014 referred at preamble - (3) above, prepared results of the examination of the accountant as per revised key and accordingly, revised selection list has been prepared on the basis of revised result and previous selection list with the letter dated 26.09.2012 of the finance department referred at preamble - (1) above is canceled. (4) Considering the orders of the Hon'ble High Court and the representation made by the candidates, it is clear that it is not in the interest of justice that a candidate is appointed due to any defect in the question papers used in the examination or the corresponding answer keys and the truly eligible candidate is deprived of the appointment. That means, if the defects are found in the evaluation process and upon revision therein, if some of the disqualified candidates included in the selection list are deleted and the eligible candidates are placed in the list, such procedure cannot be considered as illegal action in such case. The basic principle for the same is that if it is proved undoubtedly that there is an error in the answer key, that means, if the result of the examination is found to be vitiated, the final selection list prepared on that basis is also certain to be vitiated. In such case, in order to maintain fairness, impartiality and genuineness in the selection process, and also to ensure that the right candidate gets justice and the disqualified candidate does not get wrong benefit, it is decided by the Joint Selection Committee, Finance Department to cancel the previous selection list and to prepare selection list afresh.” 19. It appears that, after the exercise as aforementioned was undertaken, afresh merit list came to be prepared and on the basis of fresh merit list, 2nd appointment order came to be issued. One of such appointment order are placed collectively from Page No. 287 on wards of the petition. Thus, appointment apparently indicate to be the fresh appointment.
It appears that, after the exercise as aforementioned was undertaken, afresh merit list came to be prepared and on the basis of fresh merit list, 2nd appointment order came to be issued. One of such appointment order are placed collectively from Page No. 287 on wards of the petition. Thus, appointment apparently indicate to be the fresh appointment. As the appointment was treated to be afresh appointment, certain co-employees after forming an association made joint representation to treat the period of service rendered by the petitioners after their first appointment as continuing service. This representation came to be rejected and hence, the petition came to be filed by certain sections of the co-employees being Special Civil Application No. 4067 of 2016. This Court, vide order dated 03.05.2016, after making certain observations on the basis of judgment of Apex Court in the case of Rajeshkumar and Others vs. State of Bihar, directed the respondent to take appropriate decision within stipulated period. Despite this direction once again the case of the co-employees was not considered favourably and hence, another petition being Special Civil Application No. 16290 of 2016 came to be filed by group of six petitioners identically situated to the present petitioners. In the said petition, this Court has directed as under:- “22. Thus, it can be noticed that so far as those before the Apex Court who figured in the merit list, before and after reevaluation of answer (respondents No. 6 to 18) in the matter before the Apex Court, were held to have been appointed with continuity of service for the purpose of seniority, without any backwages or other incidental benefits. 23. Applying the said ratio to the case of the present petitioners whose names figured in both the lists and who have continued to serve except for the period of 1 month and 25 days, in the opinion of this Court, for the purpose of seniority, their date of appointment must go back to the original date of appointment. 24. Petitioners enjoyed the privilege of being meritorious to figure in the first merit list and also in the subsequently drawn merit list. Therefore, to equate their case with those who either were left out earlier or those whose names erroneously appeared due to wrong answer keys would not be a just approach. Action of the State respondent, therefore, warrants indulgence. 25. Learned advocate Mr.
Therefore, to equate their case with those who either were left out earlier or those whose names erroneously appeared due to wrong answer keys would not be a just approach. Action of the State respondent, therefore, warrants indulgence. 25. Learned advocate Mr. Thakkar at this stage has requested for concession that the period when these petitioners were unable to serve for 1 month and 25 days for no fault of theirs, be treated as an extraordinary leave. The period during which the petitioners served was nearly 1 ½ years when service came to be ended due to litigation by those who did not succeed and once again reappointment pursuant to the revised merit list has been done and therefore, since the act of the Court should prejudice none and as the petitioners had no role to play in dropping the first merit list and also in redrawing the same nor were they at fault anywhere, such a request for concession that the said period of one month and twenty five days be treated as extraordinary leave, as the petitioners are not desirous to enter into any other dispute with regard to that period, appears to be a reasonable request. 26. Let the authority treat the same accordingly. 27. Petition in wake of the aforesaid discussion stand allowed. Order of the respondent authority dated 3.8.2016 is quashed. The petitioners are held entitled to benefit of continuity of service for the calculation of five years from the date of their original appointment. Their appointment shall relate back to the date when they were first appointed with continuity of service to them for the purpose of seniority without any back wages or other incidental benefits.” 20. Against the aforesaid order, the State had preferred an appeal being Letters Patent Appeal No. 1467 of 2017 which came to be disposed of in favour of the petitioners vide order dated 07.09.2017, wherein Division Bench of this Court held as under:- “7. Having considered the submissions advanced on behalf of learned advocates for the parties and having gone through the material on record, it has emerged that in pursuance of the advertisement dated 12.11.2011 issued by the Department, the petitioners submitted their applications and appeared in the examination. When the merit list was prepare, their names appeared.
Having considered the submissions advanced on behalf of learned advocates for the parties and having gone through the material on record, it has emerged that in pursuance of the advertisement dated 12.11.2011 issued by the Department, the petitioners submitted their applications and appeared in the examination. When the merit list was prepare, their names appeared. However, some of the candidates who did not find their place in the merit list, challenged the merit list on the ground that there were certain mistake in the answer keys prepared by the respondents. Ultimately, after getting the report from the experts, it was revealed that there were certain mistakes in the answer keys and therefore, it was decided to revise the merit list. In the meantime, the decision was taken by the Department to terminate the services of the petitioners and similarly situated persons. However, after the revised merit list was published, the respondent-authorities gave appointments to such candidates whose names appeared in the revised merit list. It is required to be noted that the names of the petitioners appeared in the first as well as revised merit list. Thus, the respondent authorities reappointed the petitioners after the revised merit list was published. The respondents cannot deny that it was the mistake of the concerned authority in preparing the answer keys as a result of which the services of the petitioners came to be terminated and the revised merit list was prepared in which also, the names of the petitioners found their place. Thus, we are of the view that when the services of the petitioners were wrongly terminated and when they are reappointed, continuity of service is required to be granted to them. 8. In view of the above discussion and in view of the reasoning recorded by the learned single Judge, we are of the view that no error is committed by the learned single Judge while allowing the petition, which requires any interference in the present appeal.” 21. The State had preferred SLP before the Apex Court being SLP Nos. 6599-6600/2016, which was not entertained by the Apex Court, thereby, confirming the order of this Court passed in Special Civil Application No. 16290 of 2016 and Letters Patent Appeal No. 1467 of 2017. 22.
The State had preferred SLP before the Apex Court being SLP Nos. 6599-6600/2016, which was not entertained by the Apex Court, thereby, confirming the order of this Court passed in Special Civil Application No. 16290 of 2016 and Letters Patent Appeal No. 1467 of 2017. 22. This Court finds the case of the petitioners on the same factual metrix and therefore, in so far as the entitlement for treating the petitioners to be in service continuously from the date of their first appointment is covered by the aforesaid decisions, and therefore, this Court has no hesitation in directing the respondent-State to treat the petitioners to have been appointed on the day of their first appointment order and to be continuously in service since then as is directed by this Court in the earlier petitions. The break in service from the date of the cancellation of appointment till the grant of 2nd appointment on the basis of revised merit list is to be treated as an extraordinary leave for each individual petitioner. 23. The contention of delay raised by the learned AGP by submitting that the date of 2nd appointment of revised merit list was of 2014 and that the petitions have been filed agitating the said point only in the year 2020 during which rights of other parties have crystallized. It would be appropriate to refer to the chronology which indicate that the representation was made to the Department by the association and some of the members of the association had already challenged the action of the respondent and the same was under consideration of the Court as per the decision of this Court as well as Government Resolution dated 22.08.2014, but any benefit that annured of on the basis of policy has to be made available to the other employees regardless of their being petitioners before the Court or not comes into play with full force. It is therefore prudent for the petitioners to await the outcome of such litigation and if any benefit is accrued on that count, it could only be legitimately expected by the petitioners that such benefit will be extended even to the petitioners. Hence, the Court is of the view that there does not appear to be any delay and that such delay has not acted in any manner fatal to the other co-employees. 24.
Hence, the Court is of the view that there does not appear to be any delay and that such delay has not acted in any manner fatal to the other co-employees. 24. Over and above, there does not appear to be anything on record to substantiate the apprehension raised by the learned AGP about affecting the seniority list which may have crystallized. In absence of the necessary particulars, the Court is not inclined to presume especially in the facts of the present case where staff injustice has been caused to the petitioners. 25. In view of the aforesaid, the petition stands allowed by directing the State to treat the petitioners to have been appointed on the day of their first appointment order and to be continuously in service since then as is directed by this Court in the earlier petitions. The break in service from the date of the cancellation of appointment till the grant of 2nd appointment on the basis of revised merit list is to be treated as an extraordinary leave for each individual petitioner.