SCA/3106/1995 1/37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3106 of 1995 With SPECIAL CIVIL APPLICATION No. 2426 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ======================================================== 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 ? ======================================================== PK VASAVDA & ORS - Petitioner(s) Versus STATE OF GUJARAT & ORS & 2 - Respondent(s) ======================================================== Appearance : MR BP TANNA, ld. Senior advocate with MR NIKHIL KERIAL, ld. Advocate for the Petitioners of Special Civil Application No.3106 of 1995 MR PV HATHI, ld. Advocate for the petitioners of Special Civil Application No.2426 of 1995 MR MAULIK NANAVATI, ASST. GOVERNMENT PLEADER for Respondent(s) : 1 - 2. MR KM PATEL for Respondent(s) : 3, ======================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH SCA/3106/1995 2/37 JUDGMENT Date : 23/2/2007 ORAL JUDGMENT As both these petitions are inter connected and raising common question of law and facts, they are being disposed of by this common judgment and order. 2. Special Civil Application No.3106 of 1995 is filed under article 226 of the Constitution of India by the petitioners who were at the relevant time working in the cadre of Assistant Commissioner of Labour (hereinafter referred to as “the ACL”) for an appropriate writ, order and/or direction quashing and setting aside the impugned order dated 23- 3-1995 of the State Government, respondent No.1 herein fixing the seniority of respondent No.3 i.e. one Shri AK Patel and quashing and setting aside the order dated 24/28-3-1995 giving promotion to the respondent No.3 to the post of ACL. By way of amendment, it is also prayed alternatively to direct the respondent authorities to regularize the services of the respondent No.3 Shri AK Patel and subsequently fix his seniority on that basis from 1978 or from 1976 when for the first time the respondent No.3 had chosen to appear before the GPSC examination and accordingly directing the respondent Nos.1 and 2 to pass appropriate orders about regularization of the services and consequently fixation of seniority of respondent No.3 from the year 1978 or 1976. 3. Special Civil Application No.2426 of 1995 is filed by the respective petitioners who were initially working in the cadre of SCA/3106/1995 3/37 JUDGMENT Government Labour Officer (hereinafter referred to as “the GLO”) for an appropriate writ, order and/or direction quashing and setting aside the order dated 23-3-1995 by which the seniority of the respondent No.3 Shri AK Patel has been fixed in the cadre of GLO, and by which the State Government confirmed the orders contained in the Government resolution dated 14/18th December 1989 showing Shri AK Patel at serial No.46 in the final seniority list of the GLO as on 21-1-1983 considering his period of ad hoc appointment also for the purpose of seniority. By the said order, the Government also was pleased to give the date 21-4-1982 as deemed date of Shri AK Patel's promotion to the post of ACL (being the date of promotion of his junior Shri NH Dave to the said post of ACL) with the benefit of permitting Shri AK Patel to draw the difference of his pay and allowance consequent upon his promotion to the post of ACL from the said deemed date of promotion i.e.21-4-1982 onwards. It is also further prayed for an appropriate order directing the State Government to take appropriate action for re-fixing seniority of the petitioners and respondent No.3 in accordance with law and by further directing the respondent No.1 to fix seniority of Shri AK Patel, respondent No.3 herein in the cadre of GLO w.e.f. 27-6-1994, the date on which his service was regularized and it is also further prayed to quash and set aside the consequential orders dated 24-3-95 and 28-3-1995. Factual Position: 4. Few facts are necessary for the purpose of determination of the present Special Civil Applications, as these group of petitions have chequered history. Respondent No.3 Shri AK Patel was appointed as SCA/3106/1995 4/37 JUDGMENT GLO along with other persons on ad hoc and temporary basis on 11-12- 1972 with the condition that they were required to be replaced by the candidates selected and recommended by the GPSC. Meaning thereby, the appointment of respondent No.3 Shri AK Patel was on purely ad hoc and temporary basis till the regular candidates selected by the GPSC are available and that as and when the GPSC examination is held, the respondent No.3 is required to appear in the examination. It appears that after the appointment of the respondent No.3 on ad hoc basis, the GPSC gave advertisement for 17 posts of GLO and examinations were held by the GPSC on 16-7-1973, however, the respondent No.3 did not appear in the said examination. Again in the year 1975, the GPSC held the examination for the post of GLO, again respondent No.3 did not choose to appear. In the year 1976, when the GPSC again gave advertisement for the post of GLO and conducted examination, the respondent No.3 for the first time applied for the said post. However, the respondent No.3 was not permitted to appear in the examination as by the time, he has become age barred. It appears that thereafter the regularly selected candidates selected by the GPSC were available and therefore, by order dated 5-9-1981, the respondent No.3 was sought to be terminated. However, before the said order could be served, the respondent No.3 Shri AK Patel and one Shri KC Patel preferred Special Civil Application No.3615 of 1981 challenging the order of termination dated 5-9-1981 submitting that when they got chance to appear in the examination held by the GPSC, they are told that they have become age barred and it was also contended on their behalf that their services were required to be regularized as they were selected by departmental selection committee and that after a period of 9 years they cannot be told that they have become age barred. It appears SCA/3106/1995 5/37 JUDGMENT that it was also submitted that there are powers of age relaxation and the said power has not been exercised and therefore, it was requested to pass appropriate order of regularizing their services. At this stage, it is required to be noted and it appears from the memo of Special Civil Application No.3615 of 1981 that an impression was given before the Court that for the first time they got chance to appear in examination of GPSC in the year 1976 and they were told that they have become age barred, however, they did not disclose that earlier twice, the examinations were conducted by the GPSC for the post of GLO but they did not appear. The learned single Judge by order dated 11-9-1981 stayed the order of termination dated 5-9-1981. By interim order dated 16-3-1982, the learned Single Judge directed the respondent No.3 Shri AK Patel to make representation to the Government appealing for relaxation of the age limit under Rule 8 with Rule 16 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 and the State Government was directed to dispose of the same by speaking order. The State Government rejected the representation on 17-4-1982 on the ground that said Shri AK Patel had got chances to appear in the GPSC examination when he was within the age limit, however, he did not avail of those chances and did not appear. That thereafter, the Special Civil Application No. 3615 of 1981 came to be finally heard by the learned Single Judge who by its judgment and order dated 26-2-1992 allowed the said Special Civil Application No.3615 of 1981 directing the respondents to regularize the services of Shri AK Patel and another in the post of GLO. Being aggrieved and dissatisfied with the judgment and order passed by the learned single Judge dated 26-2-1992 passed in Special Civil Application No.3615 of 1981 by which this Court directed the respondents to regularize the SCA/3106/1995 6/37 JUDGMENT services of the respondent No.3 as GLO, the State Government preferred LPA No.533 of 1993 making one of the grievance that while issuing the direction by the learned single Judge regarding regularization of services of the respondent No.3 and another, there is no direction as regards fixation of seniority and the same will create complications. However, while dismissing the said LPA, the Division Bench in its order dated 29- 12-1993 observed that the said apprehension has no merits and the services of the original petitioner (respondent No.3 herein) and other are to be regularized in accordance with law and their seniority is to be fixed in accordance with law and in just and fair manner. That thereafter, the respondent No.3 preferred Special Civil Application No.8991 of 1993 before this Court for an appropriate order directing the respondents to immediately promote him to the post of ACL and to consider his case of deemed date of promotion to the said post and give him all consequential benefits regarding notional pay, other increments, allowances etc. It was also further prayed to direct the respondents to consider his case for promotion to the post of Deputy Commissioner of Labour. It appears that the case of the respondent No.3 Shri AK Patel was based upon the judgment and order passed by the learned single Judge passed in Special Civil Application No.3615 of 1981 and to consider the period right from 1972 as GLO. The said Special Civil Application came to be heard by the learned single Judge who by its judgment and order dated 24-3-1994 allowed the said Special Civil Application directing the respondent, State Government to fix the seniority of Shri AK Patel in accordance with law and in a just and fair manner by observing that the same should be preceded by an order of regularization and after regularization, his seniority should be dealt with accordingly. The learned single Judge also SCA/3106/1995 7/37 JUDGMENT made certain observations in para 5 which shall be dealt with hereinafter. That thereafter, the services of the respondent No.3 Shri AK Patel came to be regularized by order dated 27-6-1994. However, it was also further directed that Shri AK Patel would be treated to have been confirmed in service as GLO from the date on which he completed two years probation period as GLO and his services came to be confirmed w.e.f. 14-12-1974. Petitioners of Special Civil Application No.2426 of 1995 preferred Special Civil Application No.7757 of 1994 apprehending that they were likely to be superseded in the matter of promotion to the post of ACL and that to the post of Deputy Commissioner of Labour, if Shri AK Patel and other are put above them in the seniority list. It was their contention that they were appointed as GLO in the year 1977 after their selection by the GPSC and that the respondent No.3 Shri AK Patel's service has been regularized as GLO in the year 1994 and therefore, it was prayed for an appropriate order directing the respondent State Government to fix their seniority on the basis of their regular selection by the GPSC and to fix the seniority of Shri AK Patel and another in the cadre of GLO from any date on and after 26-2-1992 and to consider their case for promotion to the post of ACL on the basis that they are senior to Shri AK Patel and Shri KC Patel. In the said Special Civil Application, it was submitted on behalf of the State Government that only regularization order dated 27th June 1994 has been issued regularizing the services of Shri AK Patel to the post of GLO and the seniority of Shri AK Patel is not fixed. The learned single Judge also observed that the averment made in the affidavit-in-reply regarding fixation of seniority vide Government circular dated December 18, 1989 pale into insignificant in view of the earlier statement made in para 3 to the effect that the order dated 27th June 1994 SCA/3106/1995 8/37 JUDGMENT has been passed for only regularizing the services of Shri AK Patel i.e. nothing to indicate that seniority of Shri AK Patel is determined. Accordingly and in view of the above observations and the affidavit-in- reply filed by the Deputy Secretary to the Government of Gujarat Shri VB Rana, petitioners of Special Civil Application No.7757 of 1994 withdrew the said Special Civil Application and the learned single Judge disposed of the Special Civil Application as withdrawn by further directing the respondent State Government to determine the seniority of the petitioners of Special Civil Application No.7757 of 1994 (now Special Civil Application No.2426 of 1995) and Shri AK Patel and Shri KC Patel in light of the observations made by this Court in Special Civil Application No.8991 of 1993 and after taking into consideration the representation made by the petitioners of Special Civil Application No.7757 of 1994 and the representation that may be made by Shri AK Patel and Shri KC Patel in accordance with law and principles of fair play and natural justice, the learned single Judge also directed the State Government to consider the judgments which have been referred to in the representation addressed by the petitioners of Special Civil Application No.7557 of 1994 and annexed thereto while deciding the question of seniority and also the judgments which may be relied upon by Shri AK Patel and Shri KC Patel. The respondent State Government were directed to fix the seniority as early as possible and preferably before 28-2-1995. That thereafter, appropos the direction issued by this Court in its order dated 28-12-1994 issued in Special Civil Application No.7757 of 1994, the State Government has passed the impugned order dated 23-3-1995 confirming the order contained in Government resolution No.CLE 1182/1880-M(1) dated 14/18th December 1989 showing Shri AK Patel at serial No.46 in the final SCA/3106/1995 9/37 JUDGMENT seniority list of GLO as on 1-1-1983 and giving 21-4-1982 as the deemed date of Shri AK Patel's promotion to the post of ACL with the benefit of permitting Shri AK Patel to draw the difference of his pay and allowance consequent upon his promotion to the post of ACL from the said deemed date of promotion i.e. 21-4-1982. Immediately on passing of the order dated 23-3-1995, a further consequential order came to be passed by the Deputy Secretary to the Government Labour and Employment Department dated 24-3-1995 appointing Shri AK Patel as ACL and thereafter again Shri AK Patel has been promoted to the post of Deputy Labour Commissioner, however, subject to final outcome of Special Civil Application No.2426 of 1995 and Special Civil Application No.3106 of 1995 (notification dated 30th December 1995). Being aggrieved by the impugned order dated 23rd March 1995 and the subsequent consequential orders and promotions of Shri AK Patel and putting Shri AK Patel as above the petitioners in the seniority list and considering the seniority of Shri AK Patel from 1974 as GLO, the petitioners have preferred Special Civil Application under Article 226 of the Constitution of India. Shri BP Tanna learned senior advocate appearing for the petitioners of Special Civil Application No.3106 of 1995 has made the following submissions; ➔That the petitioners are the direct recruits in the cadre of ACL from the year 1982. ➔That the respondent No.3 Shri AK Patel had been originally appointed on ad hoc basis on the post of GLO in December 1972 with condition that as and when the regular candidate selected by the GPSC is available, his services would be terminated. ➔That along with respondent No.3 fifteen other GLOs were SCA/3106/1995 10/37 JUDGMENT appointed on ad hoc basis on similar condition. On 16th July 1973, the GPSC issued advertisement for 17 posts for GLO. However, the respondent No.3 did not choose to apply for regular appointment. ➔That pursuant to the said selection, 17 candidates were selected by the GPSC. Out of 16 ad hoc appontees, 14 had either resigned or their services had been terminated due to availability of regular appointees. ➔That the respondent No.3 and one another person i.e. Shri KC Patel though deserved to be removed, were continued by the State Government. ➔In the year 1975 again, the GPSC issued advertisement for regular appointment of GLO, in this selection process also the respondent No.3 Shri AK Patel did not choose to appear. ➔In the year 1976, six persons were appointed as GLO and at that stage, respondent No.3 Shri AK Patel knowing very well that he was age barred, applied. That the respondent No.3 was not allowed to compete on the ground of his being over age. ➔In the year 1981, the services of the respondent No.3 had been terminated, which resulted in respondent No.3 approaching this Court by way of Special Civil Application No.3615 of 1981. This Court initially granted interim relief and the respondent No.3 continued in service and ultimately on 26-2-1992 petition came to be allowed by this Court directing the State Government to regularize the service of the respondent No.3 as he has worked for more than 9 years as GLO. That thereafter, the service of the respondent No.3 came to be regularized in the cadre of GLO w.e.f. 11-12-1972 and thereafter, his seniority was fixed and he was given SCA/3106/1995 11/37 JUDGMENT deemed date of appointment and thereafter, deemed date of promotion in the cadre of ACL. ➔It is submitted that thereafter the impugned order dated 23-3-1995 came to be passed, whereby respondent No.3 had been given seniority and deemed date in the cadre of ACL from 21-4-1982. That on 24-3-1985, immediately, a day after the respondent No.3 was given deemed date, he was promoted to the post of Deputy Commissioner of Labour. 5. It is submitted by the learned counsel appearing on behalf of the petitioners that before issuing deemed date of order to the detriment of the present petitioners, the respondent State should have given an opportunity of hearing, as the respondent State should have considered the fact that the respondent No.3 had been duly favoured as he along with one another person were only persons out of the original 16 ad hoc appointees in the cadre of GLOs, who were not removed from the services in spite of the availability of GPSC selected candidates. It is further submitted that the respondent State also should have considered the fact that though the GPSC had initiated selection process in the year 1973 and 1975, yet the respondent No.3 Shri AK Patel had chosen not to participate and he applied for regular selection through GPSC in the selection process for the first time in the year 1976 knowing very well that by then, he had become age barred. It is submitted that thus for the first time, the respondent No.3 Shri AK Patel decided to appear for selection in the year 1976 and therefore, he could get benefit of regularization in the post of ACL as on date candidates who were selected pursuant to the selection of 1976 by the GPSC were appointed. It is submitted that when the SCA/3106/1995 12/37 JUDGMENT respondent No.3 Shri AK Patel preferred Special Civil Application No.3615 of 1981, he did not disclose and point out the Court that in the year 1973 and 1975, the GPSC had initiated selection process, however, he did not apply and/or participate and an impression was given as if after his appointment on ad hoc basis in the year 1972, for the first time the GPSC had initiated the selection process in the year 1976 and it was submitted that when he got chance to appear in the examination conducted by the GPSC, by then he had become age barred and therefore, it was the contention on behalf of the respondent No.3 to grant age relaxation and the learned single Judge considering the fact that when an occasion has arisen to appear for the GPSC examination, the respondent No.3 has become age barred and therefore, his case should have been considered for age relaxation and therefore, directed the State Government to regularize the services of the respondent No.3. It is submitted that this Court initially did not direct the State Government to regularize his service right from the beginning i.e. right from his inception as GLO. It is submitted that even in Special Civil Application No.8991 of 1993 this Court directed the State Government to fix the seniority in accordance with law and fair play. It is submitted that as such the respondent No.3 obtained the order in Special Civil Application No.3615 of 1981 and even in Special Civil Application No.8991 of 1993 suppressing the material fact that earlier the occasion did arise for appearing in the GPSC examination, however, he had chosen not to appear. It is also further submitted that neither at the time of Special Civil Application No.3615 of 1981 nor at the time of deciding Special Civil Application No.8991 of 1993, the petitioners were heard. Thereafter, it is submitted that any direction which is affecting the petitioners is not SCA/3106/1995 13/37 JUDGMENT binding to the petitioners. It is further submitted that the action of the respondent authority in regularizing the services of the respondent No.3 as GLO right from the date of his appointment as GLO on ad hoc basis and thereafter to give deemed date of promotion in the cadre of ACL are absolutely illegal and against the law laid down by the Hon'ble Supreme Court. It is further submitted that as such the respondent No.3 has never passed GPSC examination. It is submitted that even, otherwise when the respondent No.3 has applied for regularization and/or challenge the order of termination in the year 1981 only i.e. belatedly, the respondents could not have regularized the services of the respondent No.3 as a GLO from the date of his appointment as ad hoc GLO and that too defeating the rights of the petitioners and other similarly situated persons. Shri Tanna, learned counsel has further submitted that even the impugned order dated 23-3-1995 is also a non speaking order and no reasons have been assigned by the respondent authority. It is further submitted that the impugned order is a vague order. Shri Tanna has relied upon the following decisions of the Hon'ble Supreme Court. (i) Santosh Kumar and others V. G.R. Chawla and others reported in (2003) 10 SCC 513 (ii) Union of India and others V. Lalita S. Rao and others reported in (2001) 5 SCC 384 (iii) Dr. M.A. Haque and others V. Union of India and others reported in (1993) 2 SCC 213. (iv) J & K Public Service Commission and others V. Dr. Narinder Mohan and others (1994) 2 SCC 630 (v) Direct Recruit Class II Engineering Officers' Association V. State of Maharashtra and others reported in (1990) 2 SCC 715 SCA/3106/1995 14/37 JUDGMENT (vi) State of Rajasthan and others V. Rajendra K. Verma reported in (2004) 13 SCC 706 (vii) Vijay K. Dhand and others V. State of Punjab and others reported in (2004) 13 SCC 707 (viii) R.S. Garg V. State of U.P. and others reported in (2006) 6 SCC 430 (ix) Secretary, State of Karnataka and others V. Umadevi (3) and others (2006) 4 SCC 1 6. It is submitted by Shri Tanna that in spite of the fact that the decision of the Hon'ble Supreme Court in the case of Dr. M.A. Haque (supra) and Direct Recruit Class II Engineering Officers' Association (supra) were placed and/or pointed in the representation, still the respondent authority did not consider the same and granted the regularization from the date of his initial appointment as ad hoc GLO. It is therefore, submitted that the impugned order dated 23-3-1995 deserves to be quashed and set aside. 7. Shri PV Hathi, learned advocate appearing on behalf of the petitioners