Gujarat High Court
Hiteshkumar Bharatbhai Vaghela vs State Of Gujarat & 3 on 11 January, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/2964/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
SPECIAL CIVIL APPLICATION No. 2964 of 2015
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HITESHKUMAR BHARATBHAI VAGHELA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance :
Mr GUNVANT R THAKAR, ADVOCATE for the Petitioner(s) No. 1
Mr RASHESH RINDANI, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE Ms. JUSTICE SONIA
GOKANI
11th January 2016
ORAL ORDER
1. Brief facts necessary for the purpose of adjudication in the present writ petition preferred under Article 226 of the Constitution are as follow :-
2. The petitioner applied for the post of Deputy Section Officer [Secretariat Department]; Deputy Section Officer [Legislative Assembly]; Deputy Section Officer [GPSC] and Deputy Mamlatdar [Revenue Department] pursuant to an advertisement dated 28th January 2011 issued by the Gujarat Public Service Commission {"GPSC" for short}. Page 1 of 21 HC-NIC Page 1 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER He was selected and placed at Serial No. 484 by the GPSC, as per the results declared vide Notification dated 25th May 2012. Vide Communication dated 31st May 2012, he was asked to remain present with all necessary testimonials and on due verification of the same by the Commission, he was appointed as Deputy Mamlatdar in the pay scale of Rs. 9,300-34,500 with Grade Pay of Rs. 4,400 initially on the fixed pay of Rs. 10,000/= per month for five years, as per the conditions mentioned in the Government Resolution No. Est/102012/1767/N dated 11th June 2012.
3. The petitioner had also applied for the post of Commercial Tax Inspector [Class III] in response to another advertisement issued by the GPSC wherein also he came to be selected at merit no. 356 and the order came to be issued in favour of the petitioner on 7th December 2013 appointing him as Commercial Tax Inspector [Class III] in the fixed monthly pay of Rs. 10,000/= for five years. It is his case that under the control of the respondent no. 1-Revenue Department, he was already appointed and had resumed duties on 18th Page 2 of 21 HC-NIC Page 2 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER June 2012 by the time, he received an order appointing him as a Commercial Tax Inspector [Class III] dated 7th December 2013. The petitioner made a request to the authorities to allow him to join as Commercial Tax Inspector, and therefore, the respondent no. 2 issued an Order dated 12th December 2013 relieving him from the post of Deputy Mamlatdar after office hours on 12th December 2013 to join as Commercial Tax Inspector under the control of respondent no.3.
4. The petitioner since was not comfortable on the post of Commercial Tax Inspector, he made a request to the Joint Secretary [Services], Revenue Department on 2nd May 2014 to allow him to join back his duties as Deputy Mamlatdar on a plea that socially, physically and mentally, the work of Commercial Tax Inspector was not suitable to him. A reminder was also sent to the respondent no. 1 on 3rd December 2014 to reappoint him as a Deputy Mamlatdar. The respondent no. 1 therefore issued a Circular dated 21st November 2014 stating therein that the procedure to be followed in case of the petitioner is of resignation of the employee appointed on contractual Page 3 of 21 HC-NIC Page 3 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER basis in the fixed pay. In other words, it is the say of the respondent that once the resignation is tendered by the employee appointed on contractual basis, he cannot be reappointed without prior approval of the Revenue Department and condition no. 11 provides that once the service of a contractual employee ends, there is no provision to re-appoint him.
5. Reliance is placed on the decision of this Court rendered in case of Jayeshkumar Mahendrabhai Parmar v. State of Gujarat & Ors. [Special Civil Application No. 10928/2014 :: Decided on 29th September 2014] wherein the Court has held that for those appointed on fixed pay, reference to a contractual employment is wholly de hors the scheme itself. Such contractual appointment is not envisaged in the Government Resolution. The decision was to make appointment against a regular post, after regular selection and recruitment process being followed, but only the salary on the regular post was differed for a period of five years; subject to the appointee proving his suitability.
5.1 It is the grievance of the petitioner that while denying Page 4 of 21 HC-NIC Page 4 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER him the appointment on the ground that the petitioner was appointed on a fixed salary, the respondent no. 1 had ignored the Government Resolution dated 4th May 2007 issued by the General Administration of the State. Therefore, the present writ petition seeking quashment of the Circular dated 21st November 2014; and particularly Conditions No. 3 & 11 with consequential relief of directing the Revenue Department to re-appoint the petitioner on the post of Deputy Mamlatdar on the strength of Government Resolution dated 4th May 2007.
6. On issuance of notice, affidavit-in-reply is filed on behalf of the respondent no. 2 contending inter alia that the petitioner was relieved by the Office of Collector, Narmada-Rajpipla so that he could be appointed on the post of Commercial Tax Inspector, however, there is no provision for the person who is on the contractual basis, if has resigned to be re-appointed without prior approval of the Revenue Department and the Revenue Department did not respond to the petitioner as per the condition no. 11 of the Circular dated 21st November 2014 which states that once the resignation is accepted or in the event of Page 5 of 21 HC-NIC Page 5 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER terminating the services, he should not be appointed again.
6.1 Much reliance is placed on the Circular dated 21st November 2014 which according to the respondent restricts re-appointment. The petitioner has resigned from the earlier service and was permitted to join as Tax Department as Commercial Tax Inspector. It is further the case of the respondent that the case of Mahendra Parmar v. State of Gujarat & Ors. [Supra] differs materially from the facts in the instant case. The resolution dated 4th May 2007 is applicable to the employees who are on permanent basis. The petitioner has been appointed only on fixed contractual period of five years, and therefore, he is not entitled to any benefits which are likely to be given to the permanent employee as per condition no. 1 laid thereupon in the appointment letter of the petitioner, and hence, the resolution dated 4th May 2007 is not applicable in his case.
7. Rejoinder-affidavit is also filed by the petitioner. According to him, under the Right to Information Act, information has been received from the Office of Director Page 6 of 21 HC-NIC Page 6 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER of Accounts & Treasury, Gandhinagar that the benefit of Government Resolution dated 4th May 2007 is already given to {a} Varshaba N. Rathod; and {b} D.M Parakhiya, Sub Accountants and they were reappointed in their original cadre by protecting their seniority. It is further the say of the petitioner that the Finance Department is implementing the Government Resolution dated 4th May 2007 issued by the General Administration Department in cases of employees who are appointed under the scheme on fixed pay, and therefore, the Revenue Department has not authority to ignore the general policy of the State Government.
8. Both the sides have been heard at length. On hearing both the sides and on considering the chronology of events, it could be noticed that appointment of the petitioner as Deputy Mamlatdar on 11th June 2012 on fixed term of five years came to be made by the GPSC after following the selection process. He was declared successful in the recruitment of the Commercial Tax Inspector conducted by GPSC on 7th December 2013. He was relieved on his request on 12th December 2013. His Page 7 of 21 HC-NIC Page 7 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER request for re-joining at his original post came on 2nd May 2014 ie., less than six months' period. He sent reminders on 22nd July 2014 and 3rd December 2014. His request has been denied only on the aspect that he has not completed five years' of service.
8.1 Therefore, a short question is as to whether conditions no. 3 & 11 which have been incorporated in the Circular dated 21st November 2014 by the Revenue Department require to be struck down for being violative of constitutional mandate and being discriminatory qua those appointed on contractual basis, or without so doing also, the action of respondent authority can be questioned.
8.2 This Circular dated 21st November 2014 is in relation to those who have resigned from different posts after being initially appointed on contractual basis and on fixed pay. This has come into being as in case of one of the employees, after he resigned without seeking prior permission of the State Government, was taken back in service which was treated as a major lapse. It is, therefore, made incumbent upon the concerned Officer to Page 8 of 21 HC-NIC Page 8 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER seek prior approval of the Revenue Department in case of request of the employee appointed on fixed pay. 8.3 Clause 11 also emphasizes that once the service comes to an end, there is no provision to re-appoint him in the job. No proposal also shall be made before the Government for the said purpose.
8.4 Clause 12 provides that the guidance should be sought of the State Government, if any issue arises in relation to the resignation of an employee. Even without striking down clauses 3 & 11 of the Circular dated 21st November 2014, the action of the respondent-authority is not immune to the judicial review. In the instant case, this Court need not strike down both these clauses as the circular permits prior sanction of the concerned authority, in the event of any request is made for re-appointment after the person resigns from the post which is permissible as the superior authority may not want any anarchy and would surely insist on streamlining the issue when employee chose to get themselves reappointed. 8.5 The question, therefore, is whether the respondent- authority has committed an error in denying the benefit of Page 9 of 21 HC-NIC Page 9 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER the Circular issued by the General Administration Department dated 4th May 2007 while considering the question made by the petitioner to once again join duty as Deputy Mamlatdar. The answer shall have to be in affirmation.
9. Admittedly, the petitioner had been appointed initially on a fixed pay for a period of five years. His first appointment was made on the post of Deputy Mamlatdar, after due selection and he also cleared examination conducted by GPSC for the post of Commercial Tax Inspector. It was since found out within six months that it was not conducive for him to continue as Commercial Tax Officer,he has shown his willingness to return back to the Department from where he has resigned, taking recourse to the Circular issued by General Administration Department which permits such re-appointment. It is not even the case of the respondent authority that there are no vacancies available on the post of Deputy Mamlatdar nor also that large number of such requests are coming often disrupting smooth functioning of administration. It is also not disputed that two other persons named in the Page 10 of 21 HC-NIC Page 10 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER rejoinder affidavit have already been given such benefit. The only exception that has been carved out is that those two employees were already permanent employees and in the Department in which they were seeking reappointment, therefore, GAD Resolution of 4th May 2007 would have applicability in their cases. Whereas, in case of the petitioner, he neither had completed five years' service on the post of Deputy Mamlatdar nor on the post of Commercial Tax Inspector. Thus, the only reason for denying him the benefits of Resolution dated 4th May 2007 is his not being the permanent employee in the department he seeks reappointment. It would be necessary at this stage to take recourse to the decision rendered by this Court in case of Mahendra Parmar v. State of Gujarat & Ors. [Supra], wherein it is observed thus
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"18. The Government Resolution dated 16th February, 2006 under which the fixed salary regime is set up, itself envisages that there would be appointment after regular selection to the post under the Government, but without offering regular salary. The preamble to the Resolution itself discusses reasons for formulation of the scheme. It provides that the appointment of the staff on contractual basis has not worked out satisfactorily, and it did not Page 11 of 21 HC-NIC Page 11 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER result in any substantial saving of Government fund. On the other hand, it led to demoralization of the employees. If instead, appointments are made for five years on fixed salary basis, it would result into considerable savings for the Government, and the appointees would receive salary in the regular scale after five years, which would maintain their dedication to the work and spirit. The Resolution therefore, provides that the appointments under the Government in Class III and IV posts made through direct selection would be for a period of five years on fixed salary on probation. The terms of the GR further provides that all such appointments would be made only after following the procedure laid down under the Recruitment Rules. There shall be no relaxation in educational or any other qualifications, nor shall there be any relaxation in the recruitment process. All persons being appointed under the scheme would be appointed on a fixed salary for a period of five years. Even the appointment on compassionate basis would be governed and regulated according to this scheme. The period of five years shall not count towards any service benefits. Significantly, the last clause 22 of the said scheme provides that the person being appointed under this scheme for a period of five years on fixed salary, having been already discharged his duties, at the time of consideration of his appointment on regular pay-scale, there would be no need for a fresh appointment on probation.
19. In our opinion, the entire scheme and in particular the last noted clause which is of great significance leaves no manner of doubt about the nature of appointment under the scheme. The scheme itself envisages appointment after full regular selection process without slightest deviation in the qualifications required or in the procedure Page 12 of 21 HC-NIC Page 12 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER for selection to be followed. The initial appointment would be for a period of five years on fixed salary basis, and upon completion of five years, the person would be brought to regular pay-scale, of course, subject to his suitability. At that time, there would be no need for issuance of fresh appointment on probation. To put it differently, the petitioner's performance would already be judged and his suitability for confirmation in service would be examined before he is brought on regular scale.
20. The scheme thus, envisages appointment on a post, with a fixed salary. It is not the case of a contractual appointment on a fixed salary basis. The entire scheme envisages a regular selection process meant for direct recruitment, scrupulous and strict adherence to the educational and other qualifications. It is aimed only at saving Government funds for an initial period of five years, as suggested in the preamble to the scheme. The scheme therefore, cannot be seen as one making appointments on contractual basis subject to permanency after five years. The scheme refers to fixed salary, though appointment is already made but the event of being brought to regular pay-scale, is differed for a period of five years. [Emphasis supplied]
21. In that context, the appointment order dated 8th May, 2014, when it refers to a contractual employment, is wholly dehors the scheme itself. In our opinion, such contractual appointment is not envisaged in the Government Resolution. It is not part of the scheme framed by the Government and could not have been slipped into the appointment order, which is not backed by any Government decision. The Government decision was to make appointment against a regular post, after Page 13 of 21 HC-NIC Page 13 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER regular selection and recruitment process being followed, but only the salary on the regular pay was differed for a period of five years, subject to the appointee proving his suitability. Thus seen, the scheme itself envisages appointment to a post. The case of the petitioner is thus covered under Rule 23 of the Pay Rules, and his pay fixation therefore, should be made in terms of Rule 13 of the said Rules.
22. The situation can be looked from a slightly different angle as well. It is undisputed that the respondent examined all qualifications and other criteria as on the date when the selection process was undertaken. For example, for direct recruitment to the post of Accountant, a candidate must be below 30 years of age, which would be relaxed for a candidate belonging to Scheduled Castes/Scheduled Tribes by five years. This criteria would be judged at the time of the selection process and not at the time when the candidate, after five years of service on fixed salary basis, is brought within the regular pay-scale. If we accept the contention of the learned AGP that appointment to the post takes place after five years, it would amount to appointing a person to a post under the Government well after he has crossed the maximum age limit prescribed for such a post.
23. The petitioner, as a Government servant, also had a right to apply for the post in question for direct recruitment as long as he fulfills the educational and other qualifications, including the age criteria. The petitioner, admittedly, fulfilled all such criteria and was therefore, considered for the post in question. If he is now asked to surrender all his past service benefits, and is also directed to accept appointment on fixed salary for another period of five years, it would virtually be taking away his avenue Page 14 of 21 HC-NIC Page 14 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER of direct selection to the post. Surely, Articles 14 and 16 of the Constitution strike at arbitrariness of the Government agencies. No interpretation of the Government scheme, which brings about such an incongruent situation, would be permissible. As a Government servant, the petitioner would be virtually deprived of a direct selection opportunity. Surely, a Government servant, who was already brought to regular pay-scale after five years of working on a fixed salary basis, and has spent several years in his post, as has happened in the present case, cannot be asked to go back to the fixed salary employment, merely because he proves himself worthy of a direct selection competing with thousands of other eligible candidates to the higher post. Any Government policy requires the candidate to surrender all his past service benefits for direct selection to higher post would be entirely unreasonable, arbitrary and therefore violative of Articles 14 and 16 of the Constitution. It would also be discriminatory. We may recall, the fix salary scheme applies only to Class III and Class IV services. Only in cases of such services this "double jeopardy" of being placed again on fixed salary upon direct recruitment of a candidate who is already holding a Government post would apply. In other words, the policy of pay protection upon a Government servant being directly selected on a higher post will apply to Class-II and Class- I posts but not to the rest. In so far as this distinction is concerned, there is no reasonable basis for different treatment. Even if this argument of ours is not to be accepted, it would amount to the Government policy being in conflict with the statutory Rules. Rule 23 of the Pay Rules, 2002 speaks of pay protection in such cases. The Government policy to the extent it is against the said Rules, must yield to the Page 15 of 21 HC-NIC Page 15 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER statutory provisions. If Rule 23 applies, the Government policy cannot be pressed in service to deny benefit of pay protection to the Government employee.
24. We are quite alive to the fact that the entire fixed salary regime of the Government envisaged under the said Government Resolution dated 16th February, 2006, has been declared as unconstitutional by this Court in the judgment in the case of Shree Yogkshem Foundation for Human Dignity (supra). Only on the basis of this judgment, the Government stance would be rendered invalid, however, we are conscious that the Government has challenged this judgment before the Supreme Court, and the judgment has been stayed. We are, therefore, given our reasons quite apart from the question of the validity of the Government Resolution dated 16th February, 2006 itself.
25. In the result, the Government's decision to offer appointment to the petitioner under order dated 28th May, 2014, on the post of Accountant on fixed salary basis is quashed. It is further directed that the petitioner shall be appointed on the said post of Accountant by protecting his current pay in the cadre of Sub Accountant, as provided under Rule 23, read with Rule 13 of the Pay Rules, 2002. The respondents shall not insist on the petitioner giving an undertaking as provided in the prescribed proforma, appended to the order dated 28th May, 2014.
It is however, clarified that the petitioner shall not claim any seniority in the post of Accountant for such period of five years, and this period would be treated as appointment on probation, and ultimately, if he successfully completes the period of probation, after five years, his seniority will be judged on the basis of his rank Page 16 of 21 HC-NIC Page 16 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER in the select list."
10. The petitioner in the above referred case was appointed on the post of Sub-Accountant on a fixed salary initially for a period of five years and upon his completing the said period, he was brought on the regular pay scale. He came to be appointed on the post of Accountant through direct selection on 28th May 2014 wherein his appointment was made on a fixed monthly salary of Rs. 10,000/= for a period of five years and also subject to his giving an undertaking in the prescribed form. Therefore, the Division Bench quashed the decision of the Government offering appointment to the petitioner on fixed salary basis vide Order dated 28th May 2014 and thereby directed that the petitioner shall be appointed on the said post of Accountant by protecting his current pay in the cadre of Sub Accountant, as provided under Rule 23 read with Rule 13 of the Pay Rules, 2002.
11. In the instant case, the petitioner had simultaneously applied for the post of Commercial Tax Inspector, which too was a post on which initial appointment was to be done on the basis of fixed monthly salary for a period of Page 17 of 21 HC-NIC Page 17 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER five years. He was already given appointment. As he was desirous of joining as Commercial Tax Inspector, when an order of appointment came on 7th December 2013, he did not resign, but in fact, had sought permission of the authorities to join as Commercial Tax Inspector and thereupon the respondent no. 2 issued an order relieving him from the post of Dy. Mamlatdar. Had he any intention of simply resigning and joining as Commercial Tax Inspector, there was no need for him to seek any permission and mere tendering of his resignation would have been sufficient.
12. It is to be noted that in case of one employee, earlier an issue had arisen which necessitated issuance of Circular dated 21st November 2014 which requires seeking of approval of the Revenue Department before a person who resigned earlier from the post when is desirous of re- appointment. Here the petitioner can be said to have resigned from the post after seeking permission from the Department to join as Commercial Tax Inspector, and he so did after he was relieved by the competent authority. Even in fact this was his resignation and the order of Page 18 of 21 HC-NIC Page 18 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER relieving the petitioner would tantamount to his having resigned and his joining the Tax Department was his fresh appointment then also, what he has done afterwards is to seek permission of the competent authority to be re- appointed in the Revenue Department. And moreover, the Resolution dated 4th May 2007 was already in existence which permits reappointment of a person who chose to join on his original post during the probation period. Admittedly, the petitioner is a Government employee, selected for being appointed to the post of Deputy Mamlatdar by way of a regular procedure as per the prevalent recruitment rules. The petitioner was also selected after due procedure by the State for the post of Commercial Tax Inspector. Both the positions are equivalent in Class III cadre. The Government Resolution dated 4th May 2007 issued by the General Administration Department confers right in favour of regularly selected candidates for appointment after following recruitment process to be re-appointed in the original cadre. The person concerned also has a right to be reappointed in the original cadre with the seniority that he enjoined before Page 19 of 21 HC-NIC Page 19 of 21 Created On Sun Jan 17 00:18:33 IST 2016 C/SCA/2964/2015 ORDER joining another post.
13. The Circular dated 21st November 2014 issued by the Revenue Department is at the most an administrative instruction. If the same is contrary to the Government Resolution dated 4th May 2007, the same cannot be allowed to prevail. The said circular clearly provides that once resignation is tendered by a Government employee appointed on contractual basis, he cannot be reappointed without prior approval of the Revenue Department. As discussed above, such policy is understandable as frequent hopping from one cadre to another cadre may cause lot of administrative issues, and therefore, prior approval of the Department would be necessary, if some body is desirous of rejoining the post. However, to say that once the service of the employee are ended who joined on contractual basis, there should be no provision to re- appoint them is surely against the essence of Government Resolution dated 4th May 2007 and particularly when the Department itself has permitted such re-appointment in case of some of the employees who had already joined on fixed contractual services.
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14. As noted hereinabove, the only distinction that is sought to be made is that those persons were permanent employees in their original cadre. If that be the case, applying decision rendered in case of Jayeshkumar M. Parmar v. State of Gujarat & Ors. [Supra], the petitioner could not have been denied re-appointment, as sought for.
15. Resultantly, the present writ petition succeeds with consequential reliefs. Respondent no.1 shall forthwith reappoint the petitioner on the post of Deputy Mamlatdar and thereby issue necessary orders of his reappointment on the said post by relieving the petitioner from the post of Commercial Tax Inspector.
16. Rule nisi made absolute with no order as to costs.
Direct service is permitted.
{Ms. Sonia Gokani, J.} Prakash* Page 21 of 21 HC-NIC Page 21 of 21 Created On Sun Jan 17 00:18:33 IST 2016