IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 703 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE AKIL KURESHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- S.M. JADAV Versus GUJARAT STATE LAND DEVELOPMENTCORPORATION -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 703 of 2003 MS SEJAL K MANDAVIA for Petitioner No. 1-10 MR HS MUNSHAW for Respondent No. 1 MS REETA CHANDARANA, AGP for Respondent No. 2 MR TH SOMPURA for Respondent No. 3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE AKIL KURESHI Date of decision: 05/11/2004 ORAL JUDGEMENT In this petition, the petitioners have prayed for quashing and setting aside the report of the Committee submitted in December 2002 produced at Annexure A to the petition. The petitioners have also prayed for a direction to count the seniority of the persons who are deputed to the respondent No.1 Corporation from the date of their absorption in the Corporation and not from the date of their appointment on regular basis to the same post or equivalent post in their parent department in the State Government service. 2. Briefly stated, facts leading to the present petition are that the petitioners are direct recruits on different posts in the respondent No.1 Corporation. Respondent No.1 Corporation is a statutory Corporation and was established in the year 1978 by the State Government. Some of the schemes which were until then undertaken and implemented by the State Government were transferred to the respondent No.1 Corporation in the year 1978 and thereafter also some more schemes were transferred in the year 1982-83. 2.1 For the smooth functioning of the Corporation, the Corporation had to recruit staff members and the Corporation therefore resorted to three different modes of engagement of employees, viz. (i) those who were sent to the Corporation on deputation from the State Government's service and continued on deputation since they did not opt for being absorbed in the Corporation, but were not immediately repatriated to the State Government; (ii) those who were deputed to the Corporation from the State Government service and were absorbed in the Corporation considering their option for being absorbed and (iii) those who were directly recruited by the Corporation. 2.2 It appears that several disputes arose between employees of these three different and distinct streams and questions of their seniority and promotion were agitated before the High Court in several petitions. These petitions were grouped together and by the order dated 29th November 2001, a Division Bench of this High Court noted the grievances of the petitioners in the said batch of petitions and also noted that the petitions were pending since 1985 and in the meantime several developments had taken place which were yet to be brought on record. Considering the issues involved, the Division Bench directed the Assistant Government Pleader appearing for the State Government to take necessary instructions from the concerned Department and to suggest to the Court whether a Committee comprising of Heads of the concerned Departments of the State and the Corporation as also the authorized representative of the employees can be constituted so that for redressal of the grievances of the petitioners, a policy can be framed and worked out. 2.3 By the order dated 12th December 2001, the Division Bench in the said group of petitions being Special Civil Application No.981/90 and allied matters took note of the decision of the Government vide its resolution dated 3rd December 2001 that a Committee comprising of representatives of the officers of the Gujarat State Land Development Corporation and the State of Gujarat has been constituted. The High Court, therefore, gave following directions : (1) The newly constituted committee shall grant opportunity of representation and hearing to petitioners, collectively or individually, themselves or through their representatives. (2) The petitioners' individual and joint grievances shall be considered by the committee on all questions raised in this batch of petitions and the committee shall also go into all ancillary questions placed before it. (3) The learned counsel appearing for the parties assure all cooperation in the course of hearing and deliberations before the Committee. The committee, after required hearing and deliberations, shall pass a just and reasoned order. (4) Until final decision by the committee and its communication thereof, status quo existing under the interim orders made by this court shall be maintained and it shall be so maintained for a further period of one month after communication of the decision of the committee so as to enable them to approach the appropriate court or forum, in case of any adverse order. (5) The Committee shall complete its hearing and deliberations within a period of four months from the date of this order and within the said time, shall communicate to the parties its reasoned decision." 2.4 From the above orders passed by the Division Bench, it can be seen that a Committee came to be constituted by the State Government as per the directions of the High Court and the Committee was entrusted with the task of considering all questions arising in the batch of petitions and the Committee was also required to go into all ancillary questions placed before it. The broad procedure that the Committee was required to follow and the time within which the Committee had to submit its conclusion were also provided for by the High Court in the said order. Thus, the Committee was the creation of the order of this High Court as mentioned above. 3. Subsequent to the constitution of the Committee and the directions of the High Court in its above mentioned order dated 12th December 2001, the Committee heard at length the petitioners of those petitions or their representatives and the Unions and deliberated all the questions placed before the Committee. Eventually, the Committee submitted its report in December 2002 in which the Committee reached certain conclusions, some of which have aggrieved the present petitioners. The petitioners, have, therefore, filed the present petition challenging the same and the conclusions reached by the Committee in its order passed in December 2002. 4. From the averments made in the petition and the oral submissions made before the Court, it appears that the petitioners have been aggrieved mainly by two aspects of the report of the Committee. Firstly, the petitioners are aggrieved by the decision of the Committee to count the seniority of the persons who were earlier deputed to the Corporation from the State Government and later on absorbed by the Corporation from the date of their appointment on regular basis on the same or equivalent posts in the parent department in the State Government. 4.1 The second bone of contention between the petitioners and the respondents in this petition is with respect to the conclusions of the Committee by which the Committee has decided to reopen the question of regularization of the direct recruits under certain circumstances. This aspect will be elaborated at a slightly later stage. However, at this stage, it can be noted that the Committee found that if any of the direct recruits were appointed without calling the names from the Employment Exchanges or without any advertisement and passing through the proper process of selection, their services should be regularized by taking lenient view with the approval of the proper authority and their seniority can be fixed from the date of regularization of their services. 5. As mentioned above, in the batch of petitions, large number of questions were raised and number of questions were placed before the Committee for its consideration and depending upon the fact situation, the Committee has given its conclusions with respect to the issues arising before it. The present petitioners are, however, aggrieved by only two aspects of the Report of the Committee and one may need not, therefore, go into other decisions of the Committee since the conclusions reached by the Committee therein do not directly touch the issues arising in the present petition. 6. The report of the Committee is placed by the petitioner on record at Annexure A. Along with the conclusions of the Committee, separate reasons why the Committee came to the conclusions on each issue are annexed to the said report. Learned counsel Shri Munshaw appearing for the respondent No.1 has made available to the Court the detailed minutes of the proceedings of the Committee which eventually led the Committee to the above conclusions. Copies thereof are also made available to the appearing parties and the Minutes of the Committee are ordered to be taken on record. In the said minutes, the Committee has recorded at length the representations of the parties who appeared and voiced their grievances before the Committee. 6.1 With respect to the seniority of the deputationists who were ultimately absorbed in the Corporation, the Committee formulated the following questions to be decided: (a) Whether or not the Govt. employees first sent on deputation alongwith the transferred activities and subsequently absorbed permanently as per their options in the corporation established exclusively for the activities transferred from the Govt. deptt. should count their seniority from the date of their regular appointment in a cadre of their parent dept. vis-a-vis the date of direct recruits of the corporation and entitle for for promotions on the cadres born on the establishment of that corporation on the basis of their combined seniority list prepared accordingly ? or as they have availed the admissible terminal benefit of their Govt. services, they should count their services afresh form the date of their permanent absorption in such corporation for the purpose of their seniority and promotions, irrespective of their date of regular appointment in a cadre in their parent deptt ? 6.2 With respect to the question of counting the past services rendered by the deputationists in the State Government on same or equivalent posts, towards their seniority in the Corporation, upon their absorption eventually, the Committee noted the decision of the Hon'ble Supreme Court dated 14th December 1999 (Reported in (2000) 1 SCC 644) and eventually found that the deputationists upon their eventual absorption in the Corporation would be entitled to count his seniority of the services rendered by them in their parent department in the State Government. In the words of the Committee, the exact conclusions in this regard are as follows: (2) The seniority of the persons who have been absorbed while on deputation and who have already been holding on the date of their absorption, the post in which they are absorbed, on regular basis in their parent deptt. should be fixed from the dates they have been holding the post on deputation or the dates from which they have been appointed on regular basis to same post, in their parent deptt., whichever are earlier. In such cases there cannot be and should not be any question of counting their services afresh in the corporation from the date of their permanent absorption." 6.3 With respect to the direct recruits, the Committee noted the grievances of the rival groups in this regard and came to the following conclusions: "(4) The recruitment rules for the posts under the Gujarat State Land Development Corporation Limited, 1982 were framed by it effective from 1.5.82. If direct recruitment was made prior to it, it is not clear how it was made in absence of any recruitment rules. If it is made, it is no doubt irregular but it might not be legally feasible to discharge their services at this distance of time. It is also not appropriate to enter into the propriety of the direct recruitment after such a long period and sit in judgment. If they satisfy the requirement of the recruitment rules and if otherwise their recruitment is made through proper process of recruitment, their services should be treated as regular from the date of their appointment. It seems the Corporation has already done it and it should not now be reopened for inviting further litigations. However in case, if any person is appointed without calling names from the employment exchanges or without any advertisement and passing through the proper process of selection, their services deserve to be terminated. However, if they have continued for long time, their services should be regularized by taking a lenient view with the approval of the proper authority and their seniority be fixed from the date of regularization of their services. All other direct recruits regularly appointed should be given their seniority from the date of their appointment, i.e. the date from which they have joined their services. If however they have been assigned their order of merit during their selection and have joined their services within the prescribed time limit, their inter-se seniority should be fixed in that order, irrespective of their dates of joining. If somebody has joined late and permitted to do so, his seniority should also be fixed in order of his such merit. Otherwise, he should get his seniority from the date of his joining service. Where however, the ratio for appointment by direct selection and by promotion is mandatory, the seniority of direct recruits vis-a-vis promotes (promoted by the Corporation after its inception) should be fixed in accordance with the Govt. orders contained in the GR, GAD dt. 4.12.86, as amended from time to time." As noted above, these are the two conclusions of the Committee which have aggrieved the petitioners of the present petition. 7. Appearing for the petitioners, learned counsel Ms.Sejal Mandavia contended that the Committee grossly erred in granting seniority to the deputationists for the period long before they agreed to be absorbed in the Corporation. She submitted that the deputationists were given sufficient opportunities and they had in the past not accepted the offer to be absorbed in the Corporation and that therefore eventually even if they agreed to and were absorbed in the Corporation, they cannot under any circumstances count their seniority from the date they were regularly appointed in the State Government. She submits that the seniority of the deputationists upon their eventual absorption in the Corporation can count only from the date of their absorption or at any rate from the date when they first joined the Corporation on deputation and under no circumstances can their services put in by them in the State Government prior to the deputation to the Corporation could be counted for seniority. Learned counsel for the petitioners has also placed reliance on the decision of learned single Judge of this High Court, in the case of D.B.Bhatt v. State of Gujarat, 1997 (2) GCD 262 (Guj) and contended that the deputationists could not count the service rendered with the State Government for the purpose of seniority in the Corporation since their absorption in the Corporation was not in the interest of administration. 7.1 With respect to the decision of the Committee to reopen the question of regularization of the petitioners and other similarly situated direct recruits, it is contended that the petitioners were regularized way back in the year 1984 and it was, therefore, not open to the Committee to reconsider the question of regularization of the petitioners all over again at this distant point of time. It is further submitted that the Committee did not have the power to consider the question regarding the validity of the regularization of the petitioners in service. She submits that the observations of the Committee that the petitioners could not have been regularized till framing of the recruitment rules is not borne out from the correct legal position. Even otherwise, it is her contention that the Committee could not have questioned the regularization of the petitioners after such a long period of time that too without giving sufficient opportunity to the petitioners to represent their case. 8. Appearing for the respondent No.1 Corporation, learned counsel Shri Munshaw has supported the decision of the Committee. With respect to the decision of the Committee to count seniority of the deputationists from the date of their regular appointment in the Government on similar or equivalent posts, it is submitted that the decision is perfectly just and legal and the Committee did not commit any error in arriving at the conclusion. With respect to the question of regularization of the petitioners and other direct recruits, it is submitted that the Committee took into account all relevant aspects of the matter and had arrived at a conclusion that for those of the direct recruits who had not passed through any selection process and are appointed without there names coming from the Employment Exchange and/or without any advertisement, their cases should be reopened. Even then it is pointed out by the learned counsel for the respondent No.1 that the Committee has left the final decision to the Board of Directors and that no finality has been attained by the Committee in this regard. He further submits that it was not necessary to give notice to all the petitioners individually as long as sufficient general notice of the proceedings of the Committee is given in which all employees were allowed to participate and in that view of the matter in the facts of the case, principles of natural justice cannot be held to have been violated. 8.1 Learned counsel Shri Munshaw has further submitted that the Committee was constituted by the High Court and the Committee was vested with certain specific powers. The scope of inquiry of the Committee included not just the grievances raised in the petitions filed in the High Court but also extended to all ancillary issues. He, therefore, submits that the Committee was perfectly justified in considering all issues presented before it. 8.2 The counsel further submits that the question regarding the direct recruits was very much pending before the Committee. He has made available a copy of Special Civil Application No.7384/89 which is ordered to be taken on record, from which it is urged that the question of legality of the appointment of direct recruits was part and parcel of the controversies to be inquired into by the Committee. From the minutes of the meeting of the Committee, it is urged that the Committee did address itself to the question of legality of the direct recruitment process and such a question was in fact raised by some of the petitioners and in particular the petitioners of Special Civil Application No.7384 of 1989. 8.3 On the question of merits of the decision of the Committee in this regard, he submits that the Committee has not committed any illegality and if the Committee has directed reconsideration of the appointments made de hors the rules and without following any process, no objection to such a decision can be taken. 9. Appearing for the respondent No.3 Association who espoused the cause of the erstwhile deputationists, learned counsel Shri Sompura has sought to support the decision of the Committee. He has contended that the deputationists must be permitted to count their seniority in the parent department towards seniority and the decision of the Committee in this regard is perfectly valid. 9.1 With respect to the question of the decision of the Committee regarding the direct recruitment process, he submits that this issue was specifically raised in Special Civil Application No.7384/89 filed by the respondent No.3 Association and therefore when the Division Bench of this High Court entrusted the Committee to go into all questions arising in all the petitions, the Committee was well within its powers to examine the legality of the direct recruitment process pursuant to which the petitioners are working in the Corporation. It is further contended that the High Court permitted the Committee to consider all ancillary issues also and that therefore, the petitioners cannot contend that the Committee did not have the power to inquire into the legality of their regularization. 10. Having considered the rival submissions and having examined the material placed on record, I would like to consider the legality of the decision of the Committee regarding above mentioned two issues which are challenged by the petitioners in the present petition. 11. As noted earlier, the Committee has concluded that the seniority of persons who have been absorbed while on deputation and who were already holding on regular basis the same or similar posts in the parent department, their seniority should be fixed on the basis of the date when they were holding the post on regular basis in the parent department or from the date they have been holding the post on deputation whichever is earlier. The Committee therefore found that the services of such persons cannot be treated as fresh in the Corporation from the date of their absorption. 12. As noted earlier, the Committee placed reliance on the decision of the Hon'ble Supreme Court in the case of Sub-Inspector Rooplal v. Lt. Governor through Chief Secretary, 1999 JT 597 = (2000) 1 SCC 644. In the case of R.S.Makashi v. I.M.Menon, (1982) 1 SCC 379, the Hon'ble Supreme Court while considering the question of inter-se seniority of deputationists and promotees observed in para 36 as follows:- "...... The principles for fixation of inter se seniority of personnel working in the CFD had been enunciated by the Government in the Resolution dated April 1, 1963. What has been done under the impugned proviso is only to state that with respect to persons who have been rafted into the CFD Organisation from one and the same government department on deputation basis, their inter se seniority in the former department shall not be disturbed and that to the said extent a deviation should be made from the principles laid down in the Government Resolution dated April 1, 1963. We fail to see how the said direction contained in the impugned proviso for preservation of the inter se seniority of deputationists who have been drawn from one and the same government department to serve the CFD can be said to be arbitrary or unreasonable. It is a just and wholesome principle commonly applied in such situations where persons from other departments are drafted to serve on deputation, their inter se seniority in the parent department should be respected and preserved during the period of such deputation to the new department. We, therefore, consider that the High Court was in error in striking down the proviso to Rule 7 as being violative of Articles 14 and 16 of the Constitution." 13. In the decision of Sub-Inspector Rooplal, (2001) 1 SCC 644 (supra), the Hon'ble Supreme Court was examining the question of seniority of deputationists and the question of the service rendered by them on equivalent posts in the parent department before their absorption in the deputation department. The Hon'ble Supreme Court considered the validity of clause (iv) of Government of India O.M. dated 29.5.86 which reads as follows: "(iv) In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for "transfer on deputation/transfer"), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has so ever been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from - the date he has been holding the post on deputation, or the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department whichever is later." The Hon'ble Supreme Court relying on the decision in the case