SCA/3805/1998 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3805 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= C N PATEL - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR DIPAK C RAVAL for Petitioner(s) : 1,MR JJ YAJNIK for Petitioner(s) : 1, MR HEMANT MAKWANA, ASST GOVERNMENT PLEADER for Respondent(s) : 1 - 2. MR SP HASURKAR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 21/01/2008 ORAL JUDGMENT 1. The petitioner under Article 227 of the Constitution of India has sought direction by way of SCA/3805/1998 2/7 JUDGMENT writ of mandamus or any other writ for fixing seniority of the petitioner and also to permit him to appear at the Lower Revenue Qualifying (hereinafter referred to as 'LRQ') examination. 2. Mr Dipak C Rawal, learned advocate appearing for the petitioner has submitted that the prayer is now confined only to fixing seniority and so far as the prayer in respect of direction to permit the petitioner to appear in the LRQ examination is concerned, the same is not pressed. 3. The facts in brief deserve to be set out as under: 3.1 The petitioner who has been appointed under the Centralised Recruitment Scheme by the District Collector, Junagadh under the order dated 20.12.80 was required to be relieved under the order dated 27.02.81 on account of he being rendered surplus. While rendering the petitioner surplus and relieving him from service, specific orders were passed on 27.02.81 indicating that the employees like the petitioner who have been discharged or relieved on account of being rendered surplus will be considered for re-employment as and when the vacancies would be available. The petitioner infact was reappointed in the Roads and Buildings department on 20.03.81 so as to say within a period of 18-20 days from the date of his discharge. SCA/3805/1998 3/7 JUDGMENT 3.2 Mr Rawal has submitted that the petitioner's absorption and re-employment in the Roads and Buildings department was on the strength of his earlier selection and thus one can say that it was in consonance with the terms contained in the letter dated 27.02.81. The petitioner thereafter started making representations to the concerned authorities as some of the employees were given benefit of repatriation to the original department. Ultimately, the petitioner's request appears to have been accepted to on certain terms and conditions as per the order dated 26.06.97. In the order dated 26.06.97, it has been specifically by way of condition mentioned that the petitioner shall not be entitled for reckoning his seniority on account of this permission to be transferred to the Revenue Department from the Roads and Buildings department and the letter dated 26.06.97 is eloquently clear on that point. The petitioner's representation dated 10.07.97 also goes to show that the petitioner was aware of the he being absorbed in the Revenue department on those terms and conditions which are enuring in case of departmental transfers on request. The petitioner attempted to point out that this was not warranted so far as his case was concerned as in many other cases such transfer was permitted. He has also relied upon the letter of the then Collector Mr Joshi which is placed on record indicating that the inter departmental transfers which are warranted on account of service exigencies cannot be relied upon saddling the employee with handicuff of seniority in SCA/3805/1998 4/7 JUDGMENT the seniority list and therefore the persons like the present petitioner ought to have been given appropriate place in the seniority list. 4. Mr Dipak Rawal, learned advocate appearing for the petitioner has submitted that the petitioner has pointed out instances in the memo of the petition which go to show that the petitioner was really treated arbitrarily by the respondents. He has submitted that the communication dated 26.06.97 wherein the conditions have been incorporated with regard to non reckoning his seniority from the earlier position would be of no avail to the petitioner inasmuch as the entire communication would not be binding upon him. Mr Rawal has further submitted that the Collector at the relevant time has appreciated the entire controversy and therefore recommended the reckoning of seniority from the earlier date. He has also submitted that the prayer with regard to permission to appear in LRQ examination would not be available as during pendency of this petition, the petitioner was permitted to appear in the LRQ examination. 5. Mr Hemant Makwana, learned AGP appearing for the respondent State has relied upon the reply affidavit and submitted that the petitioner was appointed under the Centralised Recruitment Scheme and as he was declared surplus he was required to be discharged. Such discharged employees by way of benevolent gesture on the part of the State were reappointed on SCA/3805/1998 5/7 JUDGMENT available vacancies. He has submitted that it is important to noted at this stage that the petitioner's re-employment also had been from the same zone wherein the centre could have made his appointment and therefore though the petitioner was infact rendered surplus on 27.02.81, right within a period of 21 days he came to be re-employed according to the terms mentioned in the letter dated 27.02.81. Thereafter, the entire correspondence on the part of the petitioner is only for seeking seniority after his repatriation to the revenue department. Under the scheme of Centralised Recruitment, it is for the Collector of the district to allot the candidates various offices in his district. Therefore, time and again the respondents have been careful enough to notify to the petitioner that the petitioner's request for informing the revenue department coupled with the condition that he will not be entitled to seniority as he demands. The petitioner, who was knowing fully well accepted the same condition can now not reopen the entire issue by filing the present petition. Mr Makwana has submitted that therefore the present petition deserves to be dismissed. 6. Heard learned counsel for the parties and perused the papers on record. The entire scheme of Centralised Recruitment at the relevant time deserves to be borne in mind which will go to show that the cnadidates selected under the scheme would have no right whatsoever for appointment. The petitioner though came to be reappointed originally in the SCA/3805/1998 6/7 JUDGMENT collectorate was required to be rendered surplus n account of dearth of vacancies at the relevant time. As it is rightly submitted by Mr Makwana, learned AGP the benevolent gesture was shown vide order dated 26.02.81 wherein an assurance was given to the petitioner and other employees like him that in case any vacancy is available they would be considered for re-employment. The word re-employment itself denotes unequivocally that the employees like the present petitioner did not have any right to reckon the service nor did they have any right to even ask for change in service. It was a different situation that the petitioner got re-employment within a period of 20-22 days after his relieving from the earlier employment but that in itself cannot be said to be a right of the petitioner to condone the breach which existed in his service. That apart as it is stated hereinabove the state has done a benevolent gesture but that itself cannot be stretched for the petitioner that he was not only to be absorbed but also given seniority on that basis nullifying the right. In fact the petitioner has accepted the order dated 26.06.97 and therefore he cannot agitate reckoning his seniority as if he was never held surplus. 7. For the foregoing reasons, this petition is bereft of any merits and is required to be dismissed. Accordingly, petition is dismissed. Rule is discharged. No order as to costs. SCA/3805/1998 7/7 JUDGMENT (S.R.BRAHMBHATT, J.) Divya//