IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2421 of 2001 with SPECIAL CIVIL APPLICATION No 6365 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ B J JADEJA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2421 of 2001 MRS KETTY A MEHTA for Petitioner No. 1-5 MR HD DAVE ASSTT GOVT PLEADER for Respondent No. 1-1/2 MR CL SONI for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 17/04/2002 COMMON ORAL JUDGEMENT #. Heard Mrs.K.A.Mehta, learned advocate appearing on behalf of the petitioners - employees and Mr.H.D.Dave, learned AGP on behalf of the respondent No.1[a] & [b] State Authority as well as Mr.C.L.Soni, learned advocate for respondent - Company, appearing on behalf of the respective parties in these petitions. #. In Special Civil Application No.2421 / 2001, RULE has been issued by this Court on 9th April, 2001 to be heard with Special Civil Application No.6365 / 1999. Similarly, in SCA No.6365 / 1999, Rule issued on 20th October, 1999 returnable on 24th November, 1999. Affidavit-in-reply filed on behalf of the respondent No.1 by Shri S.A. Kadari, Under Secretary, Industries and Mines Department on 29th February, 2000. Affidavit-in reply has also been filed on behalf of the respondent No.2 on 25th November, 1999 and thereafter, Rejoinder was filed by the petitioner on 13th January, 2000. Affidavit in-sur-Rejoinder and further affidavit of the petitioner in both these petitions are filed by the petitioner No.3 Shri N.J.Patel on 28th March, 2000. Further affidavit has been filed by the petitioner No.7 on 1st December, 2001 and thereafter, the respondent No.2 has filed further affidavit in reply to the rejoinder of the petitioner on 22nd March, 2000. #. In Special Civil Application No.2421 / 2001, affidavit-in-reply filed by the respondent No.2 on 14th June, 2001 and no reply is filed by the respondent No.1 though they are relying upon affidavit in reply in Civil Application No.11704 / 2000 filed by Shri S.A.Kadari, Under Secretary, Industry and Mines Department dated 1st February, 2001 and Sur-Rejoinder dated 27th February, 2001 is filed by the respondent No.1. Mr.H.D.Dave, learned AGP has referred these two affidavits of respondent No.1 while making submissions in respect of both these petitions. #. The brief facts giving rise to these petitions are as under :- The petitioners were serving at Gandhinagar Unit of respondent No.2 Company as Junior Operator- E and were appointed during 1987 - 1991. In the year 1997, the Sate Government has decided either to privatize or close down certain public undertakings and their employees who had surplus, be given three options, viz. such employees may continue with the private management after privatisation, they can taken option of voluntary retirement scheme and thirdly, they can register their names as surplus employees before the surplus cell which was to be administered through the Finance Department of the State of Gujarat. The persons who register their names in the surplus cell will be absorbed in the services of the State Government on availability of vacancy. For this purpose, the State Government has issued Circular dated 28th November, 1997 by the Finance Department which clearly stated that those persons who take the third option of registering themselves with the surplus cell will be required to be absorbed in the State Government as per the availability of vacancies. However, they will be offered employment in any cadre in any pay scale where the vacancies may be available and will also be considered for appointment in Panchayats, colleges, Universities, schools and other institutions governed by the State or semi- Government organizations. The petitioners gave option for being absorbed in the State service by registering their names as surplus employees in surplus cell. On 28th July, 1999, the State Government issued circular whereby it was pointed out that in the public undertakings, the surplus employees who will be rendered jobless because of the closing down of public undertakings, will only be given option of voluntary retirement scheme and those public undertakings going to be privatized, the employees serving in such undertakings, will be given only two options of either remaining with the private management or voluntary retirement scheme. However, in para-2 of the said circular, it was clearly stated that those public undertakings in which partly voluntary retirement scheme and partly surplus employment scheme is made applicable and some employees are already given alternative employment, in such public undertakings, those who have already registered themselves in the surplus cell by virtue of earlier circular dated 28th November, 1997, will continue to get advantage of the said scheme of alternative employment. Accordingly, the petitioners gave their third option in August, 1998 and they had added one condition namely the petitioners were working as Junior Operator - E and are doing technical work in the pay scale of Rs.950-1500/- and therefore, they should be given employment in the same cadre. However, by virtue of paras 3, 6 and 7 of the Government Circular dated 28th November, 1997, the Government can offer the petitioners employment in any scale and in any cadre and it was open to the petitioners either to accept or reject the same. According to the petitioners, they were not offered Government employment till 1999 and privatisation became obvious, the petitioners along with other five other preferred Special Civil Application No.6365 / 1999 and claimed that the Government may be directed to offer them alternative employment and absorb them in clerical post in pay scale of Rs.950 - 1500, otherwise, alternative employment and absorb them in clerical post in pay scale of Rs.950-1500/-. In another alternative, the petitioners prayed that the State Government may absorb the petitioners in clerical cadre in the State Government service. It is also case of the petitioners that they have clearly pointed out that they were prepared to be absorbed in the equivalent cadre in the lower pay scale other than the pay scale of Class IV service. According to the petitioners, in reply to the said Special Civil Application No.6365 / 1999, it was pointed out that "In fact as per the Government scheme, the petitioners were entitled to be absorbed on the post carrying pay scale equivalent to the pay scale of the post which the petitioners were holding. However, according to the respondents, the petitioners cannot be absorbed in the clerical post in the State Government as the cadre carries higher pay scale of Rs.950-1500". It was further pointed out in the reply that "As per para C-1 of the Circular dated 28th November, 1997, if the Government could not post the incumbent who has opted for alternative employment within one year, he has to go under voluntary retirement scheme. However, in the interest of employees, the Government has not implemented such provisions in toto and employees herein given posting were allowed to continue in the company without any disturbance. All such employees are informed by GCEL management as there are no positions available in the grade of Rs.775-1025, the Government has allowed them to continue with GCEL - respondent No.2. Therefore, there was apprehension on the part of the petitioners that the respondent No.2 Management may remove them from service and hence, prayer made by the petitioners to absorb them in the scale of Rs.775-1025 in clerical cadre should not be entertained and needs to be rejected. It was further pointed out in affidavit filed by the respondent that "as the petitioners are in the grade of Rs.775 - 1025 [ revised Rs.2610 - 3540 ] which is considered to be in Class IV category in the Government, the Government cannot post them in Class-III category which starts from Rs.950 - 1500 [ revised Rs.3050 - 4500 ]. The demand of the petitioners needs to be rejected." It was further pointed out that the petitioners are already informed that their services with respondent No.2 shall continue with reference to their application opting for alternate employment in the Government, so the question of relieving them does not arise and no orders are required to be issued. It is further pointed out by the petitioners that thereafter, similar petitions namely SCA No.1598 / 2000 and 3038 / 2000 to 3063 / 2000 were preferred by the employees of the respondent No.2 on the similar ground. Special Civil Application No.1598 / 2000 was filed by the petitioners identically situated as petitioners and who had also given their options on condition of adding a condition that they may be absorbed in Class III service in the same pay scale which was given to them by the respondent No.2 company. On 25th April, 2000 in the same petition, this Court has directed the Government to look into the matter and see that as far as possible the grievance of the petitioners are redressed. Some of the petitioners filed their consent letters immediately. However, two persons involved in Special Civil Application No.1598 / 2000 gave their consent letters as late as in July and August, 2000 and they were absorbed in Class IV services of the State of Gujarat. Likewise, four other petitioners of SCA No.6365 / 1999 also gave their consent letters for being absorbed in Class IV service in July, 2000 and they are also absorbed in Class IV services. The present petitioners have also given consent letters on 7th November, 2000. However, on 1st November, 2000 the respondent Company gave an application to the Labour Commissioner for closure of the company. According to the case of the petitioners, no advance notice was given prior to 1st November, 2000. Thereafter, the Labour Commissioner has granted permission and then, in response to the application for review submitted by the Union and the matter has been referred for adjudication to the Industrial Tribunal. Civil Application No.11704 / 2000 filed in Special Civil Application No.6365 / 1999 was decided and interim relief granted in the said application earlier came to be vacated and therefore, being aggrieved thereof, the petitioners immediately preferred Letters Patent Appeal No.222/2001. Thereafter, the respondent No.2 has issued order of termination on 23rd March, 2001 and sending therewith retrenchment compensation and other benefits to the petitioners. Therefore, in the present petitions, the petitioner have challenged order of termination passed by the respondent No.2 and made further prayer to direct the respondents to consider the case of the petitioners for alternate employment in Class IV service as per their consent letter. #. So far as Special Civil Application No.6365 / 1999 is concerned, wherein set of facts is identical as referred above and the prayer is made to direct the State Government to absorb the petitioners in the clerical post in the State Government service in the pay scale of Rs.950-1500 which is revised at Rs.3050-4500 and alternatively, it is also prayed to direct the State Government to absorb the petitioners in Clerical Cadre in State Government service in the lower pay scale of Rs.775-1025 revised at Rs.2610-3540 and third prayer seeking directions on the respondent No.1 - State Government not to treat the petitioners as excess employees and further direct the respondents to consider the question of their option for absorption in Class III post in State Government service. #. In affidavit-in-reply filed on behalf of the respondent No.1 - State Government, wherein the contention has been raised that the petitioners were required to file their option in the format within prescribed limit mentioned in the Public Notice. The public notice put by the company clearly indicates that the employment in GCEL - respondent No.2, shall continue till the Government is able to place them suitable. The employees cannot put their own conditions, while filing their option forms. Conditional option forms for alternative employment in the pay scale of Rs.950-1500 are liable for rejection. However, with a view to give them opportunity to get a permanent job in the Government. The petitioners were asked for their willingness to work in the lower grade but some of them had shown such willingness and as a result of which, they could be posted in different department of Government. It is further contended that in all, fourteen employees have been absorbed by the State Government whose names have been mentioned in Annexure-B along with reply. It is further pointed out by the State Government that there were no positions in Clerical Cadre available in the Grade of Rs.775-1025 and therefore, there is no possibility to absorb the petitioners in clerical cadre. It is also submitted by the respondent that the company does not have any such scheme to upgrade the employees after completion of nine years and therefore, they are not entitled to be posted in the pay scale of Rs.950-1500. The petitioners have filed conditional option forms contrary to the Government Circular dated 28th November, 1997. The category of the petitioners were accepted in the grade of Rs.775 - 1025 and accordingly the employees who were willing to be absorbed in the said scale and finally accepted the posting offered by the Government in the lower grade of Rs.775 1025 and they have joined different department of State Government as Class IV equivalent post. The State Government has also pointed out in the reply that Circular dated 28th November, 1997 the Government can post an individual who has opted for alternate employment, of course willingly as he has filled in the form after reading all the conditions mentioned in the Alternate Employment Format in the same grade or in the lower grade and therefore, there is no violation of Articles 14 and 16 inasmuch as taking option for alternate employment is not compulsory, but voluntary. It is further pointed out that as per the Circular dated 28th November, 1997, if the Government could not post the incumbent, who has opted for Alternate Employment within one year, he has to go under voluntary retirement scheme. However, in the interest of the employees, the Government has not implemented such provision in toto and employees who were not given posting were allowed to continue in the company without any disturbance. All such employes are informed by the respondent No.2 Management accordingly that no positions are available in the grade of Rs.775-1025 in clerical cadre, Government has allowed them to continue with the respondent No.2. The Government has also made it clear in the reply that the petitioners are already informed that their services with the respondent shall continue with reference to their application opting for alternate employment in the Government and therefore, the question relieving them does not arise and no orders are required to be issued. It is also case of the respondents that according to Annexure-D letter dated 22nd October, 1999 by Deputy Secretary, Finance Department addressed to the Managing Director of the respondent No.2 informed that the petitioners being Junior Operator, are required to be continued in service with the Corporation as there was no possibility of absorption to the petitioners in the higher pay scale but they can be absorbed in the lower pay scale. Accordingly, Additional General Manager [P&A] of respondent No.2 informed the petitioners by letter dated 23rd October, 1999 that because no post is available with the State Government, they should remain continue with the Corporation / company. The respondent No.2 who has filed affidavit-in-reply almost on similar line of the State Government. It is necessary to note that the petitioner Nos.2, 4, 8 and 10 involved in this petition are already absorbed by the State Government in Class-IV service of the State Government. Though the case of the present petitioners, who have very identical case and similarly situated except the fact that the petitioners those who are absorbed, had given consent letter prior in point of time, whereas, the rest of the petitioners have given consent letter on 7th November, 2000. The petitioners gave consent letters to absorb then even in lower pay scale of Rs.2550-3200. In the mean time, during pendency of the main petition, Civil Application No.11704 / 2000 was preferred by the petitioners before this Court pending main petition, with prayer seeking directions on the State Government to absorb the petitioners in Class - IV cadre in accordance with their consent letters and they should not be retrenched from services. In the said petition, ad-interim relief was granted by this Court on 24th December, 2000 directing the respondents not to compel present petitioners to apply for voluntary retirement scheme and the respondent were further restrained from retrenching the present petitioners from their service and terminating their services on any ground whatsoever. The ad-interim relief was heard by this this Court and vide order dated 21st March, 2001, this Court refused to continue the said ad-interim relief pending the present petition and vacated the ad-interim relief granted earlier. Against the order vacating the ad-interim relief, Letters Patent Appeal No.222/ 2001 filed on 23rd March, 2001, wherein the LPA Bench has passed the order on 3rd April, 2001 with direction to the respondents to keep five posts of Class IV cadre vacant for the present petitioner Nos.1, 3, 6, 7 and 9 who were appellants in Letters Patent Appeal, in the event of their success in the present petition. The State Government has filed affidavit-in-reply in Civil Application No.11704 / 2000, wherein contention has been raised by the respondent Government that who were on surplus list and in case time period was not elapsed, the Government decided to continue such employees on surplus list and it has been clearly mentioned that option for alternate employment in accordance with Circular dated 28th November, 1997. Therefore, scheme for alternate employment was continued for the employees who were on surplus list as on 28th July, 1999 for consideration of alternate employment scheme and they were on surplus list till October, 1999. Therefore, according to the respondent - State Government, that applications of one year time limit will continue to apply to surplus list, otherwise, the petitioner were continued on surplus list till October, 1999 and thereafter, the petitioners were not entitled for alternate employment as per the Second Resolution dated 28th July, 1999. It is come on record that consent letters have been given by the petitioner Nos.2, 4, 8 and 10 to the State Government respectively on 30th May, 2000, 14th June, 2000, 14th June, 2000 and 17th June, 2000 and they were given alternate employment respectively in lower pay scale but the rest of the petitioners did not give such option and therefore, they could not be offered alternate employment. It is also found that the permission application for closure is filed by the respondent No.2 before the Labour Commissioner on 1st November, 2000 and thereafter, the petitioners have given consent letters on date 7th November, 2000 to absorb them in lower pay scale of Rs.2550-3200 and therefore, their applications dated 7th November, 2000 have not been considered by the State Government. Not only that but no employment has been offered to any employee of the respondent No.2 after 1st November, 2000. The Labour Commissioner has allowed the company to close down and therefore, voluntary retirement scheme and alternate employment scheme is no longer in operation qua petitioners. In second affidavit-in-reply filed in very Civil Application, the respondent State Government has submitted that alternate employment given to all the employees of the respondent No.2, were prior to 1st November, 2000. The company had applied for permission of closure on 1st November, 2000 on very date, all the employes to be paid retrenchment benefits only but inspite of this, the Government considered the case on humanitarian ground and offered VRS to all employees including 45 employees who were on surplus list. Therefore, the Government cannot make any discrimination by offering alternate employment to the some of the employees and by giving VRS to the remaining employees. It was further clarified that there are vacancies of class 4 posts of the pay scale of Rs.2550-3200 and there were 45 employees on the surplus list of different categories of different pay scales. Therefore, the Government is not in a position to give alternate employment to all the 45 employees and therefore, Government decided to offer VRS to all 45 employees on surplus list. Application dated 1st November, 2000 filed by the respondent for closure before the Labour Commissioner which compelled the petitioners to accept lower pay scale and therefore, according the State Government, it is too late for alternate employment as company already applied for closure on 1st November, 2000. #. Learned advocate Mrs.K.A.Mehta for petitioners has submitted that in pursuance of the Government Resolution dated 28th November, 1997, the petitioners have filled up the form of option and their names have been registered in the surplus list with the Finance Department of the State Government. Their names were continued in said surplus list with the State Government. In the second Circular dated 28th July, 1998, wherein, it is made clear that those public undertakings in which partly voluntary retirement scheme and partly surplus employment scheme is made applicable and some of the employees have already been given alternate employment, in such public undertakings those who have registered themselves in the surplus cell by virtue of earlier Circular dated 28th November, 1997, will continue to get advantage of the said scheme of alternative employment. Learned advocate Mrs.Mehta has further submitted that in the subsequent circular issued in 1999, no further period is provided and such scheme of alternative employment is remained to be continued unless persons whose names are mentioned or included in the surplus list, are absorbed by the State Government. Learned advocate Mrs.Mehta has submitted that four persons involved in this very petition have been absorbed by the State Government in October, 2000. That these employees who have absorbed in October, 2000, similarly situated with the petitioners, were also in the surplus list but the different in their case is, they had given consent letters with request to be absorbed in lower pay scale in July and August, 2000, whereas, in case of the present petitioners, who have given consent letters on 7th November, 2000. Therefore, case of the petitioners has not been considered by the respondent. Learned advocate Mrs.Mehta has submitted that similarly the petitioners gave consent letter on 7th November, 2000 subsequent to Permission Application dated 1st November, 2000 have no legal adverse effect on their legal right to be absorbed as per the Circular dated 28th November, 1997. Therefore, learned advocate Mr.Mehta submits that contention which has been raised by the respondent in reply to the effect that consent letter has been given subsequent to permission application and therefore case of the petitioners has not been considered by the respondent, is not well founded. Learned advocate Mrs.Mehta, therefore, submits that except this difference, present petitioners are similarly situated at par with said four persons who have been absorbed by the State Government. She has also submitted that one year time limit as prescribed in the Circular dated 27th November, 1997 is not implemented in toto for the petitioners. This fact has been made clear by the State Government in their reply to the effect that the Deputy Secretary of the Finance Department has wrote a letter addressed to the Managing Director of the respondent No.2 and accordingly on behalf of the respondent No.2, this fact has been informed by the respondent No.2 to the petitioners. Therefore, the petitioners remained continue in the surplus list and they are entitled to give consent to be absorbed in lower pay scale and it was duty of the respondent Government to consider such consent