SCA/2954/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2954 of 2007 With SPECIAL CIVIL APPLICATION No. 2958 of 2007 To SPECIAL CIVIL APPLICATION No. 2965 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD ========================================================= 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 ? ========================================================= AMRUTBHAI G DESAI - Petitioner(s) Versus THE STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : TANNA ASSOCIATES for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1 - 2, 4, RULE SERVED BY DS for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD Date : 27/02/2008 ORAL JUDGMENT The present petitions are filed in the SCA/2954/2007 2/12 JUDGMENT background that an advertisement was issued by the respondents on 13.9.2002 for making recruitment on various posts. The petitioners applied for that. Prior to applying to these posts, one of the petitioners was employed in B.S.F. His case is that looking to the service conditions which were offered in the advertisement at Annexure-A to the petition, he thought prudent to shift his employment if possible from B.S.F. to the respondents' employment and appeared at necessary examination and completed formalities which were required to be undertaken pursuant to the advertisement. After that, the select list was published in which the names of the petitioners were included. Consequent to the selection of the present petitioners, appointment orders were also issued and petitioners joined the services and continued to enjoy fruits of employment offered by the respondents. 2. After about one year, there came an order passed by the respondents withdrawing the regular pay scale offered to the petitioners on the plea that they have right to alter the service conditions and SCA/2954/2007 3/12 JUDGMENT the petitioners were ordered to be placed in fixed pay scale for a period of 5 years after which they were required to be regularized as per the Government policy which is placed on record at Annexure-H collectively. The relevant part of this Annexure-H, according to the learned counsel for the petitioners is Clause 14, English translation of which is reproduced here in below for ready reference: “Cl. 14 – Where advertisement for appointment on regular salary Class 3 and Class 4 cadres is published, that advertisement shall be cancelled and fresh advertisement showing fixed pay is required to be issued. Where procedure for selection is completed, there also selected candidates are to be asked whether they are willing to be appointed under this scheme and only after obtaining written consent appointments are to be issued under this scheme. Selection is not a right for a candidate to a job therefore, except those who are SCA/2954/2007 4/12 JUDGMENT already given appointment, rest of the selection list is to be cancelled and new advertisement showing fixed pay is to be issued and thereafter selection shall be made.” 3. According to the learned counsel for the petitioners this Clause 14 has not saved with the Government any power by virtue of which any appointment which has been made by the respondents can be set at naught. This Clause 14 only says that those appointments which have been made may be made in accordance with the provisions so contained in this Clause which includes taking an undertaking from the selected persons to be placed in a position where they would be governed by the changed service conditions which were made the subject matter of change by this Annexure-H dated 16.2.2006. 4. The case of the learned counsel for the petitioners is that since their appointment is in accordance with the Notification of the respondents and the impugned action by which the service SCA/2954/2007 5/12 JUDGMENT condition of the petitioners is changed is not according to any regulation of the respondents but is without jurisdiction. There is no such regulation produced or shown by the respondents that they have ever resolved in their statutory exercise powers to confer on themselves of such power. Their action is hit by the law laid down by the Hon'ble Supreme Court. The learned counsel for the petitioners relied on the case decided by the Hon'ble Supreme Court in the matter of TEJSHREE GHAG AND OTHERS VS. PRAKASH PARASHURAM PATIL AND OTHERS reported in (2007) 6 SCC 220 wherein the Hon'ble Apex Court has held as under: “The terms and conditions of their service, thus, unless altered expressly, would be governed by the rules which were in existence at the time when the impugned orders were passed. It is true that the State has the power to alter the terms and conditions of service even with retrospective effect by making rules framed under proviso appended to Article 309 of the Constitution of India, but it is also well SCA/2954/2007 6/12 JUDGMENT settled that the rules so made ordinarily should state so expressly.” (emphasis applied) 5. Thus, the learned counsel for the petitioners has prayed that the action of the respondents in setting at naught a regular appointment of the petitioners into a fixed pay scale appointment is bad in the eye of law. The power to make such a change has not been incorporated in Clause 14 of the Circular referred to here in above. 6. Per contra, the learned Assistant Government Pleader, pleaded that this has been done by the Government to rationalize their own action because from the same set of selection they have offered to number of persons in the list, appointment on fixed pay scale. Rationality was guiding factor of their action and anything done to rationalize their action cannot be gone into by this Court in judicial review. 7. If the appointment of the petitioners is saved as is being prayed then it will be a SCA/2954/2007 7/12 JUDGMENT discrimination to all others who have been offered appointment and given fixed salary by the respondents. It is further submitted on behalf of the respondents that it is by mistake that the appointments were made in favour of the petitioners because the Financial Department had not been consulted before issuance of the appointment orders. It is not denied that the selection and appointment of the petitioners were on vacant posts and in that view of the matter, whatever has been paid to them as regular pay scale employee, has not been sought to be recovered and that part of the payment has been saved. It is also pointed out that the appointment orders of the petitioners contained a clause that the petitioners would be entitled to those emoluments which would be decided by the Government from time to time. Thus, it is claimed that in the appointment orders itself it is made clear that the petitioners will get that emoluments which the State Government decides from time to time. The learned counsel for the respondent State placed reliance on a case decided by the Hon'ble Supreme Court in the matter of GOVT. OF A.P. AND OTHERS VS. SYED YOUSUDDIN AHMED SCA/2954/2007 8/12 JUDGMENT reported in (1997) 7 SCC 24 particularly paragraph No. 4, which reads as under: “The relationship between the Government and its servant is not like an ordinary contract of service between a master and servant but a legal relationship something in the nature of status. Origin of government service is contractual; but once appointed to his post or office, the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties but by a statute or statutory rules which may be framed and altered unilaterally by the Government. The Legislature under Article 309 of the Constitution and the Governor under proviso to Article 309 of the Constitution can make law determining the service conditions of the government employees and such law can also be retrospective.” SCA/2954/2007 9/12 JUDGMENT 8. I have considered the arguments advanced on behalf of rival parties and have given my thoughtful consideration. There is no denial that an employer State has absolute right of changing the service conditions retrospectively. What has to be seen in the present set of circumstances is that whether the State Government has passed any such law whereby the petitioners can be deprived of their rights which have been conferred on them by a regular appointment retrospectively. 9. The power which is claimed by the Government flows from Annexure-H and Clause 14 of it. It has been quoted hereinabove for ready reference. A reading of Clause 14 clearly states that it stipulates all those actions which were to be taken by the respondents in future. Any action taken retrospective has not been touched by this Resolution. Having not been touched by the Resolution in reference, the appointments made in favour of the petitioners are not likely to be interfered. 10. A clear and unambiguous order was passed in SCA/2954/2007 10/12 JUDGMENT relation to the appointments offered to the petitioners, it indicates civil right has come to vest in them. To divest a vested right a definite authority of law is required to be possessed by the respondents. That definite authority of law having not been acquired, the general principle of General Clauses Act which gives authority which has a right to do one thing is different than the right to undo. That right cannot be pressed into service. 11. Whatever can be done in terms of Clause 14 of Annexure-H is clear and unambiguous that contains no stipulation of retrospectivity and this is not denied by the Government counsel. He says to rationalize their own action, they have cancelled the appointments of the petitioners because not doing so would mean offending Article 14 of the Constitution. But then the learned counsel for the Government has forgotten that there can be a reasonable classification. Those who have acquired the status one year before form a different class and a different class of people can be treated differently. In that eventuality, infringement of Article 14 of SCA/2954/2007 11/12 JUDGMENT the Constitution cannot be seen. 12. In view of the aforesaid discussion, this Court is of the view that the impugned action against the present petitioners is liable to be struck down and is accordingly struck down. The petitioners are entitled to get regular pay scale as they were ordered to be placed in regular pay scale. In that view of the matter, the petitions are allowed as indicated above with no order as to costs. Rule is made absolute accordingly. The petitioners would be entitled to get all consequential benefits which flows from saving of their initial appointment orders. 13. The learned counsel for the respondent State requests to stay the operation of the order which is not considered appropriate in view of the clear position emerging out of the discussion that the action of the respondents is violative of the powers which are vested in them. (BHAGWATI PRASAD, J) SCA/2954/2007 12/12 JUDGMENT (pkn)