SCA/5892/1993 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5892 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= D.K.PARMAR & 1 - Petitioner(s) Versus STATE OF GUARAT & 4 - Respondent(s) ========================================================= Appearance : MR MEHUL SHARAD SHAH for Petitioner(s) : 1,DELETED for Petitioner(s) : 2, MR VIPUL MISTRY AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 16/05/2008 ORAL JUDGMENT 1) This petition under Article 226 of the Constitution of India is filed by the petitioner SCA/5892/1993 2/8 JUDGMENT challenging the order dated 1.4.1990 passed by respondent No.2 at Annexure-C whereby the petitioner is allotted to the office of the District Education Office at Patan in the then District of Mehsana, as unconstitutional, illegal, arbitrary and unjust and violative of Articles 14 and 16 of the Constitution of India. The petitioner has also challenged the impugned order on the ground that though the petitioner belong to Revenue Department and his services are regularized as such, there was no justification to declare him surplus and/or to allot or transfer him altogether to a different department ignoring his seniority contrary to the rules and regulations framed by the Department. 2) Mr.Mehul Shah, learned counsel for the petitioner, relies on the order dated 22.10.2002 passed by this Court (Coram : Hon'ble Mr. Justice M.S.Shah) in Special Civil Application No.5846 of 2002 in case of an employee who was similarly situated to the present petitioner. 3) That initially the petitioner was appointed by order dated 29.9.1984 as a special case on compassionate ground as per the prevalent policy framed by the respondents and later on by an order dad 17.10.1989 passed by the district Collector, Mehsana, services of the petitioner came to be regularized in accordance with SCA/5892/1993 3/8 JUDGMENT Centralized Recruitment Scheme. 4) Learned counsel for the petitioner further submits that vide Government Notification dated 15.2.1985, the Government Non-Secretariat Clerks, Clerk-Typists and Typists Recruitment Examination Rules, 1970 (for short `the Rules, 1970') were amended. The petitioner has passed Post Training Examination in the first attempt and by virtue of passing this examination, the petitioner is getting benefits of seniority from the date of joining the service, i.e. 29.9.1984, when the petitioner was initially recruited by the District Collector, Mehsana. 5) In view of the above, according to learned counsel for the petitioner, the petitioner is entitled for continuity of service with all other consequential benefits from 29.9.1984. Mr.Shah further submits that the declaration of petitioner as a surplus employee on the ground of closure of election establishment and transferring the petitioner altogether to different departments without following the rule of seniority, is unjust, illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. 6) Mr.Shah, learned counsel for the petitioner, has produced information available to the petitioner under the Right to Information Act, which reveals that in the cadre of Clerk, out of the SCA/5892/1993 4/8 JUDGMENT sanctioned strength of 99, 77 posts are filled and 22 posts are vacant, as on date. 7) According to Mr.Vipul Mistry, learned AGP, at the relevant point time i.e. in the year 1989, when there was no work and the temporary establishment of the election duty came to be discontinued, instead of terminating the services of the petitioner, he was absorbed in the Department of Education. Learned AGP has relied on the order dated 6.2.1991 passed by the Division Bench of this Court in Letters Patent Appeal No.348 of 1983 and submitted that whether an employee should be kept in one department or should be transferred to another department is entirely an administrative function and no employee can insist that he should be allowed to serve in a particular department. In view of the above, according to learned AGP, the case of the petitioner does not deserve any consideration. 8) Having heard learned counsel for the parties and considering the facts and circumstances of the case, more particularly, a bare perusal of the rule reproduced by the petitioner with regard to the Rules of 1970 and the amendment dated 15.2.1985 by Government notification, prima facie, it appears that the grievance of the petitioner seems to be genuine. Amendment dated 15.2.1985 to the Rules of 1970 reads as under :- SCA/5892/1993 5/8 JUDGMENT “Recruitment Examination Rules, 1979, Rule 8 thereof, came to be amended and after sub- rule 2, sub-rule 3 came to be added which reads as under :- “A candidate who is appointed as 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 Caste or Scheduled Tribe Candidates). Provided that seniority of a candidate as referred to above shall be counted from the date of passing of the post-training examination, if he fails to pass the examination as prescribed in Rule 7 within three chances (four chances in case of Scheduled Caste or Scheduled Tribe candidate). Corresponding change was made in Rule 21 of the Recruitment Examination Rules, 1979 and sub-rule 3 was inserted which reads as under :- “The seniority of a candidate appointed as a Clerk or Clerk-Typist, subject to undergoing training and/or passing the examination, shall be determined as per the provisions of Rule 9(3) of the Gujarat Non-Secretariat Clerks and Clerk-typists (Training and Examination) Rules, 1970”. 9) The above amendment confers benefit of seniority upon an employee, who passes Post Training Examination in three chances. In the case of the petitioner, he has passed the said examination in the first attempt itself and, SCA/5892/1993 6/8 JUDGMENT therefore, the benefit of seniority from the date of joining the services will have to be extended to the petitioner. Not only that, but in the year 1989 by an order dated 17.8.1999 the services of the petitioner were regularized in the cadre of Clerk. Thus, for all purposes, the petitioner is a regular employee in the regular establishment of the Revenue Department of the District Collectorate, Mehsana. Therefore, the impugned order declaring the petitioner as surplus cannot be sustained. 10)Even on the point of parity, reliance was placed by the learned counsel for the petitioner on the order dated 20.10.2002 passed by this Court (Coram : Hon'ble Mr. Justice M.S.Shah) in Special Civil Application No.5846 of 2002 wherein while dealing with an employee, similarly situated to the present petitioner, following directions were given:- “6. In view of the fact that the respondents are not in a position to point out any distinguishing feature between the case of the petitioner and that of Mr Jepiwala,there is no reason why the petitioner should not be granted the same benefits which are granted to Mr. Jepiwala, subject to the petitioner also complying with the conditions in the Circular dated 3.10.1988 issued by the Secretary, General Administration Department. 7. In view of the above discussion, the petition is allowed. The respondents are directed to repatriate the petitioner to the parent department. i.e Revenue Department with the all consequential benefits subject to the petitioner passing the Pre Service Post Training Examination and the petitioner shall be given the same benefits which are granted to Mr Jepiwala by order dated 1st July, 2000. The above direction shall be complied with within two months from the date of receipt of the writ of this Court or a certified copy of this order, SCA/5892/1993 7/8 JUDGMENT whichever is earlier”. 11)Therefore, according to this Court, the case of the petitioner also deserves consideration particularly when the petitioner herein has already cleared the Post Training Examination in the first attempt and similar directions are required to be issued. 12)It is to be noted that the above order passed in Special Civil Application No.5846 of 2002 came to be confirmed by the Division Bench of this Court vide order dated 30.6.2003 passed in Letters Patent Appeal No.489 of 2003. Thus, it is clear that when the petitioner came to be regularized for all purposes by an order dated 17.10.1989 and he had passed Post Training Examination in first attempt, the petitioner deserves the benefit of seniority from the date of joining, i.e. 20.9.1984. Moreover, when the petitioner was an employee of the Revenue Department and appointed in accordance with the Rules, there is no justification to declare him surplus or transfer him to a different department of Collectorate whereat the seniority of Junior Clerk is being governed as per the set up of the said office of the District Education Office and closure of Election wing of the Collectorate and it cannot be a ground to deprive the petitioner of his legitimate right to claim seniority on the post of Junior Clerk SCA/5892/1993 8/8 JUDGMENT as noted above. 13)The contention of the learned AGP about the discretion of Government to transfer an employee from one department to another department as held by the Division Bench was in the context of interpretation of Rule 16, which empowers the Government to declare an employee as surplus in case of non-availability of work in a particular establishment, which is not applicable in the instant case. 14)In view of the above discussion, order dated 1.4.1999 passed by the respondent No.2 (Annexure-C) is hereby quashed and set aside. The petitioner is entitled for seniority from the date of joining the service, i.e. 20.9.1984. The respondents herein are directed to confer seniority to the petitioner in the cadre of Clerk in the parent Revenue Department with all other consequential benefits subject to the petitioner fulfilling the relevant criteria for such benefit. The above exercise of repatriating and placing the petitioner in original and parent Revenue Department be completed within a period of 4 weeks from the date of receipt of this order. Rule is made absolute to the aforesaid extent. (ANANT S. DAVE, J.) *pvv