IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.6459 OF 1985 WITH SPECIAL CIVIL APPLICATIONS NO.6463 OF 1985, 107 OF 1986, & 109 OF 1986 For Approval and Signature The Hon'ble Mr. Justice S.K. KESHOTE --------------------------------------------------------- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters 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? --------------------------------------------------------- G.C. UPADHYAY & ORS. VERSUS STATE OF GUJARAT & ORS. --------------------------------------------------------- Appearance: (In All Sp.C.A.s) MR SR BRAHMBHATT for Petitioners MR PG DESAI for Respondents --------------------------------------------------------- Coram: S.K. Keshote,J Date of decision: 20/10/1997 C.A.V. JUDGMENT #. In all these four matters common facts and grounds have been raised and as such are taken up for hearing together and are being disposed of by this common order. #. Special Civil Application No.6459 of 1985: The petitioner, an Assistant in Gujarat Public Service Commission (`GPSC' for short), filed this Special Civil Application before this Court and prayer has been made for declaration of the action of the respondents authorities in allocating him to GPSC, to be arbitrary and illegal. Further prayer has been made for quashing and setting aside of the same. It is next prayed to declare that he is entitled to repatriation to Sachivalaya from GPSC and to his proper placement in the seniority list of persons of the batch of the petitioner and for further directions to the authorities to put him at his place above his juniors in the seniority list. #. The GPSC, on requisition being sent by the Government, held combined examinations for selection on the posts of Assistants, Sales Tax Inspectors and Deputy Mamlatdars in the year 1980. The petitioner has applied for the post and he opted for the post of Assistant. Selection list was prepared as per the merits of candidates and therein the name of petitioner has been placed at Sr.No.113 in the waiting list for Assistant. The petitioner was called upon to join the training for the post to start at Sardar Patel Institute of Administrative Reforms from 2.6.82. The petitioner had undergone said training and after completion thereof, with effect from 20th July 1982, came to be allocated to Social Welfare Department of the Secretariat. Under the letter dated 1st December 1982, the petitioner came to be allocated to the GPSC. He was appointed in GPSC under the order dated 14th February 1983, on his relieving from Social Welfare Department on 9.2.83. After his appointment in GPSC, the petitioner started to make inquiries as to whether his seniority is to be counted in Sachivalaya and whether he has to be repatriated to Sachivalaya. The petitioner made a representation in this respect on 8th April 1983 to the Secretary, GAD, wherein he made a grievance that he came to be allocated to GPSC without his consent or option or willingness and if he is permanently kept in GPSC, he would not have much promotional changes and if his seniority is maintained in Sachivalaya, he would get the benefit of combined seniority and if his seniority was not to be maintained at Sachivalaya, he should be sent back to Sachivalaya. That letter of the petitioner was not replied. Alongwith several other persons, the petitioner made a representation on 21st October 1983 to the Secretary, GAD and in this representation it has been mentioned that if the Government did not want to take any decision about repatriation of persons working in GPSC, they would like to have a meeting with the the Hon'ble Chief Minister and if that is not possible, they might have to move the High Court. This representation of petitioner and other persons was also not replied. Reference has been made by the petitioner to the letter dated 19th September 1981 of the Section Officer of GPSC stating therein that the Government had considered the question of repatriation of persons working in other Departments to Sachivalaya and had desired all such persons who want to come back to Sachivalaya to make representations and such representations would be considered by the Government. So as per the case of petitioner, the Government has, as back as in 1981, taken a decision to take back all persons who were allocated to other Departments if they were not happy in those Departments. The petitioner submitted that it is not rule that once allocation is made, it is final and no person can go back from allocated Department to Sachivalaya. There are various instances, the petitioner urged in Special Civil Application, even in GPSC, that persons have been repatriated back to Sachivalaya. So there is no valid reason not to repatriate the petitioner to Sachivalaya. The petitioner had not given any consent nor had exercised any option to work in GPSC and as such, against his desire, he cannot be made to work in in GPSC for all of his service tenure. The seniority list in Sachivalaya and GPSC is separately maintained and as such, though promotional chances in Sachivalaya are manifold and one can aspire even to the post of Secretary whereas in GPSC the highest post is that of Deputy Secretary which is equivalent to the post of Under Secretary in Sachivalaya. The petitioner's grievance is that in case he continues in GPSC, at the most he can go up to the post of Deputy Secretary which is equivalent to the post of Under Secretary in Sachivalaya. The allocation of employees in different Departments should have been based on some rational basis and in the case of petitioner, allocation has been made in most discriminatory and arbitrary manner. Further grievance of the petitioner is that the persons working at Gandhinagar are being given quarters and such quarters are easily available at Gandhinagar whereas for others, who are working outside Gandhinagar, it is very difficult to get quarters and this results into paying heavy rents etc. which would be financial loss to the persons not working in Gandhinagar. The persons who are lower in the merit list prepared by GPSC are working at Gandhinagar and are getting quarter facilities. It is further submitted that the persons staying at Gandhinagar and working there are getting more CLA than the persons who are working in GPSC at Ahmedabad. Not only this, the petitioner has come to know that Government is contemplating giving of loans to the persons serving in Sachivalaya so that they can construct their houses there. So what the petitioner stated is that these additional benefits which the persons who are lower in merit then him are getting even today and would get in near future which are not available to him. Hence this Special Civil Application before this Court. #. Special Civil Application No.6463 of 1985: In this case also, writ petition is filed by petitioner who was allocated to GPSC and working on the post of Assistant. His grievances are identical to the grievances made by petitioner in Special Civil Application aforesaid. The petitioner, in this Special Civil Application, was selected in the same selection held by GPSC, in which the petitioner in earlier petition has been selected. The additional facts which have been stated in this Special Civil Application are to be taken note of. The petitioner has made a reference to the case of one N.K.Ambaliay, who was lower in merits in selection held by GPSC for the post of Assistant, who was also asked to work in GPSC and on his representation, repatriated to Sachivalaya. The petitioner has further given out that many other persons who were originally allocated to GPSC on the post of Assistants, on their representations, were sent back to Sachivalaya and reference in this respect has been made to the seniority list of Assistants in Sachivalaya. The petitioner claimed identical relief as claimed by the petitioner in aforesaid case. #. Special Civil Application No.107 of 1986: The petitioner was selected for the post of Assistant in the examination held by GPSC in the year 1979. He was allocated to GPSC where he joined on 16th October 1979. As his allocation to GPSC was without his consent and without exercising any option, he made a request to the Special Secretary, GAD, Sachivalaya, on 27th November 1979 for his repatriation. Under the order dated 18th October 1980, the petitioner came to be allocated to Secretariat and he was posted in Finance Department, where he joined on 1st November 1980, on his relieving from GPSC. The seniority list of Assistants working in Secretariat was published vide Notification dated 26th June 1984 in which, name of the petitioner was shown at Sr.No.1527. This placing of the petitioner in seniority list was made on the basis of date of joining of the Secretariat and not on the basis of his initial date of joining on the post of Assistant in GPSC. So as per the case of petitioner, his name should have been at Sr.No.1401 in the seniority list. The petitioner objected his placement at Sr.No.1527 in the seniority list vide his representation dated 7.7.84. Reference has been made to the case of candidate who was at Sr.No.44 in the select list published by GPSC in which the petitioner was placed at Sr.No.45. The name of former had been shown in the said seniority list of Assistants of the Secretariat at No.1401 and the petitioner claimed his placement in the said seniority list, immediately below that person. This request of the petitioner came to be rejected under the letter dated 14th March 1985. He made another representation on 10th April 1985 and reiterated his request for giving him seniority from the date of his initial appointment on the post of Assistant. In this letter, the petitioner made a reference to the cases of Shri V.K.Mehta and Shri B.R.Thakore who were his batchmates to the selection made by GPSC and who were brought back to Sachivalaya, were given seniority on the basis of original date of appointment and therefore the petitioner being similarly situated, claimed same treatment. Some other persons who were working in GPSC represented to the Government that they should also be repatriated back to Sachivalaya and out of them some filed Special Civil Application No.2287 of 1985 before this Court. The Government therefore decided to send back the petitioner and two other persons who were initially allocated to the GPSC and were repatriated later to Sachivalaya and accordingly passed an order on 11.12.85 reallocating the petitioner and two other persons to GPSC. Grievance has, therefore, been made that without any reason or justification they have been reallocated to GPSC. Further grievance has been made that those persons who have been transferred earlier to the petitioner from GPSC to Secretariat were retained and as such, it is a case of `pick and choose'. Some other contentions have also been raised. Prayer has been made for setting aside the order sending the petitioner back to GPSC and further for assigning seniority at the appropriate place in the cadre of Assistants in Secretariat. #. Special Civil Application No.109 of 1986: The petitioner, in this case has also been came to be appointed on the post of Assistant on being selected by GPSC in the year 1979. He was allocated to GPSC where he joined on 15th October 1979. As he was allocated to GPSC without his consent and without exercising any option, he also made a representation for his transfer to Sachivalaya and his request came to be accepted under the order dated 20th March 1981 of the Government and he was allocated to Secretariat. In pursuance of the said order the petitioner had joined at the Secretariat on 31st March 1981. In the seniority list of Assistants of Sachivalaya dated 26th June 1984, the petitioner has been assigned seniority, on the basis of the date of joining at the Secretariat and he was placed at Sr.No.1521 in the said list. The petitioner's case is that his name should have been placed at Sr.No.1356, on the basis of his initial date of appointment in GPSC. The petitioner in this Special Civil Application also, as per the aforesaid Special Civil Application No.107 of 1986 made representations to the Government for assigning him the proper seniority which was turned down. Further, as in the above case, the petitioner was also, alongwith two others, sent back to GPSC vide order dated 11.12.85. The petitioner, in this case, has prayed for identical reliefs, as prayed for by petitioner in Special Civil Application No.107 of 1986. #. On 9.1.86, Special Civil Applications No.107 of 1986 and 109 of 1986 have come up before this Court for admission. The Court has made order as under: N.P.A. returnable on 17.1.86. Status-quo to be maintained in the meanwhile. Direct Service. On 17th January 1986, both these petitions have been admitted and interim relief was ordered to be continued. In Special Civil Application No.107 of 1986, I found an order made on 5th February 1986, which reads as under: Heard. Interim relief in terms of Para 17(g) granted till further orders. To be heard alongwith Spl.CA.No.2287/85, 6459/65 and 63/85 in the last week of July 1986. #. So both these petitioners, there is no dispute, are working in Secretariat, on the post of Assistants, for all these years, may be in pursuance of the interim relief granted by this Court in their favour. #. In one of the other two writ petitions, the learned counsel for the petitioners submitted that the petitioner therein has been allowed by this Court to appear for examination to be passed for promotion to the next higher post in the cadre of Assistants in the Sachivalaya. ##. The learned counsel for the petitioners contended that the Gujarat Secretariat Assistance, Deputy Mamlatdars and Sales Tax Inspectors Recruitment (Examination) Rules, 1979 (hereinafter referred to as `Rules 1979') makes a provision for combined selection to the post of Assistants in all the Departments of Secretariat, Gujarat Legislature Assembly, Gujarat Public Service Commission and Gujarat Vigilance Commission, but as these are the separate posts like other posts, namely, Deputy Mamlatdars and Sales Tax Inspectors, the allotment of the candidates from the select list should have been made in the order of merits and preference given by them for the concerned service. Though these are four different departments so far as the post of Assistance is concerned but the Rules 1979 are misleading and they were treated to be only one Department and amongst the category of Assistants, no preference of the candidate has been taken for the service whereas for two other services for which combined recruitment has been made namely, Deputy Mamlatdar and Sales Tax Inspectors, preference has been taken. This act is clearly arbitrary on the part of respondents to allot the candidates who opted for Assistant irrespective of their merits and without taking their consent or option to any of the Departments out of the four aforesaid departments. It has next been contended that allocation of employees in the categories of Assistants has been made without there being any rational basis. Moreover, no sufficient guidelines have been provided by the Government for allotment of candidates who have opted for the post of Assistants in the four departments aforesaid. This action of respondents to allocate the candidates who opted for the post of Assistants in the four departments without any consent and in ignorance of their merits is wholly arbitrary, illegal as well as it makes a hostile discrimination. The learned counsel for the petitioners then urged that the two departments, namely GPSC and Secretariat are taken to be a common departments and there is an interchangeability of Assistants. When inter changeability is there, then on the transfer of candidates from GPSC to Secretariat or vice-versa, seniority has to be assigned with reference to the date of their initial appointment or with reference to the merit number in the select list. He further urged that when the post of Assistant was taken to be a common post for all these four departments, then a combined seniority list should have been prepared so that there may not be any grievance of the placement of a candidate in either of the Departments. In the Secretariat, what the learned counsel for the petitioner contended there are much more future chances of promotion and better facilities in comparison to the posting in other three departments. However, other facilities may not be so important, the promotion is most important and if the combined seniority list is prepared and on the basis of same, promotions are given to the next higher post, then there may not be any difficulty to any of the candidates in their posting in any Department in respect of merits. Comparing these two Departments, Assistants can reach to the level of Secretary if he is works in Secretariat, whereas in the case of GPSC he can only reach up to the stage of Deputy Secretary which is the post equivalent to Under Secretary of Sachivalaya. Lastly the learned counsel for the petitioners contended that in two other Special Civil Applications, the petitioners therein have been transferred to the Secretariat and they worked there for years together and when some other persons have filed Special Civil Application before this Court for grievance of having a combined seniority list as well as interchangeability or transfer from GPSC to Secretariat, the impugned order of their transfers to GPSC have been made. It is wholly arbitrary and unjustified. The petitioners in those two cases raised voice for giving them seniority from the date of their appointment or in order of their merit number, but instead of giving them their due benefit of seniority, order has been made repatriating them to GPSC. ##. On the other hand, the learned counsel for respondents contended that these four departments are separate watertight Departments having their own service rules and there is no interchangeability. It has next been contended that the Legislative Assembly is constituted under the Constitution and similar is the case of GPSC. There is no interchangeability also. It is a different matter that some transfers are made from GPSC to Secretariat or vice-versa but there is no interchangeability as such as alleged by the petitioners. The learned counsel for respondents further urged that the petitioners have opted for the post of Assistants and accordingly it is for GAD to allocate them in any of the four Departments. This is a consistent policy followed by respondent-State for all these years not to take any preference for the Departments out of the four departments from Assistants. The transfer of two of the petitioners to the Secretariat from GPSC was illegal and as such it has rightly been ordered for their repatriation to GPSC. Carrying this contention further, the learned counsel for the respondents submitted that when transfer from one department to other department is on request then there is an implied condition therein that it is on the loss of seniority. The claim of the petitioners in two petitions for giving them seniority with reference to their initial date of appointment or with reference to their merit number in the select list prepared by GPSC is without any substance. ##. I have given my thoughtful considerations to the submissions made by learned counsel for the parties. ##. Before adverting to these contentions, I consider it to be appropriate to take out briefly the scheme and the underlying objects of the Rules 1979. The Rules 1979 were framed under Article 309 of the Constitution. The preamble of these Rules speaks of Rules for regulating the method of examination for recruitment to the post of Gujarat Secretariat Assistants, Deputy Mamlatdars and Sales Tax Inspectors. Sub rule (a) of rule 2 defines "Commission" as GPSC and sub rule (b) of rule 2 defines "Government" as the Government of Gujarat. Sub rule (c) of rule 2 defines "Examination" as the combined competitive examination specified in rule 3. Sub rule (d) of rule 2 defines "Schedule" as the schedule appended to these rules and sub rule (e) of rule 2 defines "Schedules Posts" as the posts specified in Schedule-I. Rule 3 provides for holding combined competitive examination by the Commission for selection of candidates for recruitment to the Scheduled posts in the Departments/Offices specified in the Schedule III at Ahmedabad every year. However, there is a further provision that the examination may also be held at Rajkot and Vadodara or different places on fulfilling the conditions. Rule 5 says that every year the concerned Department of the Secretariat shall intimate to the General Administration Department not later than 30th April the requirements of new recruits for the different Scheduled posts for the next year commencing from the 1st April of the next year, with such particulars, if any, as the Government may, by general or special orders direct. The General Administration Department shall communicate such requirements together with its own requirements, if any, to the Commission before the end of June of that year. Rule 10 is another relevant provision which provides that the candidate who desires to compete for more than one of the Scheduled posts, may submit a single application for all such posts indicating clearly in his application in order of preference the posts for which he wishes to be considered. (Emphasis provided). Rule 14 provides that a candidate applying for appearing at the examination for one or more of the Scheduled posts shall be required to pay an application fee for Rs.20/- alongwith application. Rule 15 of the Rules 1979 provides that the Commission shall arrange the names of the candidates seriatim according to the merit taking into consideration the aggregate marks obtained by each candidate in the examination and shall prepare a list of qualified candidates. Out of the qualified candidates, the Commission shall recommend the names of the candidates according to the requirement for the appointment to the unreserved vacant posts required to be filled in on the basis of the result of the examination. A proviso is there for inclusion of names of candidates belonging to the category for which the posts are reserved. This rule further contemplates for preparation of waiting list. Sub rule of Rule 15 says that result of the examination shall be divided into three parts as under: Part I : The names of the candidates to be recommended to Government; Part II : The names of the candidates to be kept on waiting list till the result of the next examination is published; Part III: The names of the candidates who are not included in part I and II above; The names of the candidates contained in parts I and II, shall be published in the Government Gazette. All the three parts of the result shall be displayed on the Notice Board of the Commission. The Commission will forward a copy of the result so published in the Government Gazette in the Government Administration Department. Rule 16 of the Rules 1979 lays that the allotment of candidates, selected for appointment to various Scheduled posts shall be made by General Administration Department having regard to the preference, if any, for any particular post, expressed by candidates, in their application for examination and the recommendation made by the Commission. Success in examination shall not, itself, confer any right to appointment and it shall be open to the appointing authority to pass over a candidate, if, after such enquiries as are considered necessary, it is satisfied that the candidate is not in all respects suitable for public service. In case a candidate declines to accept the offer of appointment to any post, his appointment shall be cancelled and his name shall be removed from the list of selected candidates. Rule 17 provides that the appointment shall be