Gujarat High Court
J P Pathan vs State Of Gujarat on 12 July, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11447 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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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 or any order made thereunder ?
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J P PATHAN & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR BHARGAV HASURKAR(5640) for the Petitioner(s) No. 2,3,4
MR SP HASURKAR(345) for the Petitioner(s) No. 1.1,1.2,1.3,2,3,4
MS NIDHI VYAS, AGP for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 12/07/2024
ORAL JUDGMENT
1. The petitioners herein came to be appointed in the Irrigation department as Clerk-cum-Typist in the year 1980 upon undergoing the regular selection mode. On 29.12.1998, Page 1 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined the petitioners were rendered surplus and transferred to the Sales Tax Department afresh. The petitioners herein are constrained to approach this Court under Article 226 of the Constitution of India praying for reliefs such as promotion, higher grade in lieu of promotion considering their original post in the original department and has prayed for the following reliefs:
"A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ directing the respondents to grant benefits to the petitioners of further promotion to which they are even otherwise entitled or in lieu of the said promotion directing the respondents to consider their case for higher grade as per the Government Resolution dated 16-8-94 ignoring the Item No.3(15) of the said resolution.
AA) YOUR LORDSHIP be pleased to hold and declare that order dated 29-12-1998, rendering petitioners surplus and giving them fresh appointment in Sales Tax department is bad in law, discriminatory contrary to the government resolutions in force at relevant point of time and consequent upon such declaration, quash and set aside order dated 29-12-98 qua treating petitioners as declared surplus and appointed afresh in Sales Tax department.
AAA) YOUR LORDSHIP be pleased to issue a writ of mandamus or any other writ in nature of writ mandamus or any other writ, directing the respondents to treat petitioners on deputation as envisaged in Government Resolutions dated 9 th May, 1989 and 25th November, 1994, and consequent thereupon direct the respondents to pay the benefits of promotion or higher grade in lue of promotion as was admissible to them with all consequential benefits Alternatively.
AAAA) YOUR LORDSHIP be pleased to issue writ of mandamus or any other appropriate writ or direction to Respondent No.1 for giving benefit to the petitioners of Government Resolutions dated 20 th February, 2004 and 24th February, 2005 at Annexure - "K" and "L" to the Memo of Special Civil Application.
AAAAA) Alternatively, YOUR LORDSHIP be pleased to direct Respondent No.2 to treat the service which petitioners have rendered in respondent no.1 department as continuous without break and consequent thereupon direct respondents to pay the petitioners second and third higher pay scales as admissible to them.Page 2 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024
NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined B) YOUR LORDSHIPS may be pleased to hold and declare that the Item No.3(15) of the Government resolution dated 16-8-94 is bad, illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
C) YOUR LORDSHIPS may be pleased to direct the respondents to continue the petitioners lien on their Original Posts in their Original Department and given them further promotion to which they are entitled on the ground of that their immediate Junior is promoted. D) YOUR LORDSHIPS may be pleased to pass any other just and proper relief as may be deemed fit in favour of the petitioner."
2. Heard Mr. S.P. Hasurkar, learned advocate appearing for the petitioners and Ms. Nidhi Vyas, learned AGP appearing for the respondent - State.
3. Mr. S.P. Hasurkar, learned advocate appearing for the petitioners, submitted that the petitioners ought not to have been rendered surplus and sent to the Sales Tax Department by way of fresh appointment. It is submitted that in view of the Government Circular dated 25.11.1994, ought to have treated the petitioners to be on deputation without deputation allowance and ought not to have permanently transferred the petitioners to the respondent No.2. It is submitted that the petitioners ought to have been treated on deputation because their service in their parent department is not rendered surplus on account of any fault of the petitioners, nor they opted to work in a particular office under respondent No.1 as a course Page 3 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined of their voluntary action. It is submitted that it is also not the case of the respondents that they have not undertaken any recruitment in either of the departments after the petitioners were permanently (as alleged to have been) absorbed in service of the respondent No.2. Placing reliance on the aforesaid, it is submitted that the respondent No.1 ought to have given effect of the Circular dated 25.11.1994 (page 19) treating the petitioners to be on deputation instead of treating the petitioners as surplus and wipe out their entire service which would otherwise have entitled the petitioners to earn promotion to the second higher grade in lieu of promotion. 3.1 Mr. Hasurkar, learned advocate, submitted that the Government Resolution dated 16.08.1994 specifies that in order to be entitled for the benefit of the said claim, 9 years of service has to be rendered however, the employees who lost their entire seniority on account of the request transfer were denied the benefits of the said Government Resolution. Such employees approached this Court by preferring Special Civil Application No.6767 of 2008 to receive the benefits of higher pay - scale. It is submitted that in such cases of the request transfer, though the employee inflicts injury upon its own Page 4 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined seniority yet the length of service alone is held sufficient for entitlement of the higher grade. It is reiterated that in the facts of the present case, it is not at the petitioners own volition they were rendered surplus, it is by mere chance that they were transferred to a particular office or the department, which ceased to have work and therefore, was required to close down. Under such circumstances, the petitioners cannot be treated to have the effect of losing their entire earlier services so as to deprive the entitlement of further benefits as contemplated under clause - 3(15) of the said Resolution dated 16.08.1994 and that, the same be declared as Constitutional ultra virus.
3.2 Mr. Hasurkar, learned advocate, relied upon the ratio laid down in cases of D.C. Sarkar & Ors. vs. Union of India , reported in AIR 1999 SC 598, Union of India & Ors. vs. C.N. Ponnappan reported in (1996) 1 SCC 524, Scientific Advisor to Raksha Mantri vs. V.M. Joseph reported in 1998 (5) SCC 305, Ajitsinh Chaturji Rathod vs. State of Gujarat reported in 2000 (4)GLR 3181, S.D. Patel vs. State of Gujarat reported in 2016 (6) SLR 569, and the orders passed in Special Civil Application No.10019 of 1993 dated 20.08.1999, Special Civil Application Page 5 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined No.8076 of 1995 dated 24.07.2001, Letters Patent Appeal No.187 of 2003 dated 20.03.2003, Letters Patent Appeal No.229 of 2003 dated 05.05.2003, Special Civil Application No.6767 of 2008 dated 15.05.2008, Special Civil Application No.14225 of 2017 and allied matters dated 26.12.2019. 3.3 Mr. Hasurkar, learned advocate, lastly submitted that the petitioners herein preferred representation to the respondent authority since many years. The first representation is dated 19.08.1999 and thereafter on 19.01.2000. Thereafter, the petitioner No.1 has again made a representation dated 25.01.2000 inter-alia requesting the respondent - State that the petitioner should be repatriated to the original department and is not inclined to work in the Sales Tax Department. At one point of time, the respondents were considering giving promotion to the petitioner No.1 and therefore, necessary information was also furnished to the Superintendent Engineer, Irrigation Circle, regarding services of the petitioners. However, ultimately vide letter dated 24.08.2005, a decision was taken to the effect that the petitioner is permanently absorbed in the Sales Tax Department and therefore, no lien is retained in the original Circle Office and therefore, he cannot be included in Page 6 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined the list of the promoted candidate. Even thereafter, the petitioners through the Union leaders also made representation however, the same was not responded by the respondent authorities and in view thereof, having known with respect to the view taken by the Hon'ble High Court, the petitioners are seeking parity with similarly placed employees and approached this Court for the prayers, as referred above. 3.4 Pending the present petition, by way of draft amendment, it is submitted that in the seniority list that was published by the concerned Irrigation department, the petitioner No.1 was placed at serial No.569, the petitioner No.2 was placed at serial No.568, the petitioner No.3 was placed at serial No.432 and the petitioner No.4 was placed at serial No.2069. Placing reliance on the same, it is submitted that the petitioner Nos.1 and 2 are reflected in the seniority list published by the Sales Tax Office of the respondent No.2 as on 01.01.2007. So far as petitioner Nos.3 and 4 are concerned, their names are not included in any of the seniority list. It is further submitted that after 1992, the respondent No.1 has not published any seniority list (as per the information of the petitioner). It is also submitted that some of the employees, Page 7 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined who were rendered surplus in the year 2004-2005, their lien is reserved in the original services by the respondents. Placing reliance on the aforesaid, Mr. Hasurkar, learned advocate, submitted that the prayers, as prayed for, in the present petition be allowed.
3.5 Mr. Hasurkar, learned advocate, also submitted that pending the present petition, the petitioner No.1 has expired and is represented through legal heirs and all the four petitioners have superannuated and in view thereof, does not press the prayer qua promotion.
4. Ms. Nidhi Vyas, learned AGP appearing for the respondent - State, placed reliance on the affidavit-in-reply filed by the respondent - State and submitted that the petitioner has no locus to challenge clause - 3(15) of the Government Resolution dated 16.08.1994 as prayed for in the present petition. The said Resolution was issued by the Government in exercise of powers under Article 162 of the Constitution of India and therefore, it has a statutory force. It is submitted that so far as the claim of the petitioners with regard to the benefit of higher grade scale is concerned, the benefit of higher grade flows from the Government Resolution Page 8 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined dated 16.08.1994.
4.1 Ms. Vyas, learned AGP, submitted that the said Government Resolution dated 16.08.1994 clearly states that the benefit of higher grade scale are available to the employees serving in those cadres where the avenues of promotion are minimum. In other words, the purpose of declaring the benefits of higher grade scale was to ensure that a Government employee may not have to face financial crisis on account of stagnation in the matter of promotion to the higher post. In view thereof, it is submitted that it is clear that if the petitioners are entitled to be considered for promotion, the petitioners would not be eligible to claim the benefits of higher grade scale. Placing reliance on the aforesaid, it is submitted that both the prayers run contrary to each other; i.e. grant of higher grade scale and the grant of promotion. It is submitted that the petitioners have lost the lien on the date when the petitioners accepted the appointment order and resumed their duty in the Office of the Commissioner of Sales Tax. The aforesaid was within the knowledge of the petitioners and it is not open for the petitioners to assert that the services of the petitioners were transferred permanently with the Page 9 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined respondent No.2.
4.2 Ms. Vyas, learned AGP, submitted that the petitioners are granted the pensionary benefits considering the appointment of the petitioners as fresh appointment. Placing reliance on the aforesaid, it is submitted that the present petition be dismissed.
5. Mr. S.P. Hasurkar, learned advocate appearing for the petitioners, in rejoinder, reiterated the contentions raised earlier however, submitted that having rendering services and then transferring and appointing the petitioners in the Sales Tax Department, is violative of Articles 14 and 16 of the Constitution of India because it was clearly stated in the Government Resolution dated 25.11.1994 that surplus employees are required to be transferred on deputation. Therefore, if the petitioners would have been transferred on deputation as per the Resolution dated 25.11.1994, there was no question of petitioners having been rendered surplus and giving fresh appointment as stated in the Government Resolution which was in contemplation at the relevant point of time. It is only because that the petitioners are declared surplus, transferred and given fresh appointment in another Page 10 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined department by the respondent authority, it has resulted in the aforesaid anomaly. It is submitted that earlier also the employees were extended the benefit of the Government Resolution dated 25.11.1994 and even after the petitioners transfer, there are instances wherein, the employees are being transferred on the basis of the deputation. It is submitted that if for one set of employees the loss of seniority is not required to be considered for dis-entitlement of the benefit of higher pay scale then in that case, another set of employees ought not to be deprived of such benefit on the ground of loss of seniority which is precisely done by Article 3(15) of the Government Resolution dated 16.08.1994. It is lastly submitted that the prayers, as prayed for, by the petitioners seeking the benefit of higher grade be considered in light of the fact that the petitioners having superannuated, even otherwise, would have loss their right of promotion and the petitioners are not pressing the prayers qua promotion.
Analysis:-
6. Having heard the learned advocates appearing for the respective parties, following emerge:
6.1 The petitioners came to be appointed in Irrigation Page 11 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined department as Clerk-cum-Typist since 1980 after undergoing regular selection procedure. The petitioners were rendered surplus on 29.12.1998. The Irrigation department of the respondent - State having closed, the petitioners herein came to be transferred to the Sales Tax Department and rendered their services in the Sales Tax Department until the petitioners are superannuated.
6.2 This Court has perused the appointment orders of the petitioners in the Sales Tax Department dated 29.12.1998 which are duly produced at Annexure - A colly, page 12 to the petition. The petitioners came to be denied the benefit of higher grade scale in view of the Government Resolution dated 16.08.1994 which is duly produced at page 20, which was issued for the scheme of higher grade scale to deal with the problem of installments of D.A., interim relief and absence or restricted chances of promotion to the Government employees.
6.3 The Government Resolution dated 16.08.1994 provides for revised higher grade scheme. The said revised scheme provides that the employees who have completed 9 years of service in the respective cadre and the grade on 1 st June, 1987 Page 12 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined or whenever they complete 9 years of service in the grade of the respective cadre after this date, shall be eligible for the first higher grade scale. Even though, they have completed more than 9 years of service that means 18-27 years of service in the same cadre on 01.06.1987, they shall be eligible only for first higher grade scale. Whereas, the second and third higher grade scale shall be admissible to the employee at 18 and 27 years in the grade of respective cadre after 1 st June, 1987 or if the employee has completed one year after reaching the maximum stage in the respective higher/promotional grade and has stagnated, whichever is later. Provided he should not have got more than two promotions/higher grade prior to that.
After getting higher grade if, the employee is promoted on the promotional post, it will be considered that he has got only one higher grade/promotion. With reference to the existing orders, the orders sanctioning second and third higher grade scale to the respective employees stood null and void. Thereupon, due to availing second and third higher grade scale according to the previous orders, the amount of difference credited to the GPF account of the respective employee, is required to be transferred to the Government accounts. The said revised scheme is subject to the conditions and provisions wherein, the Page 13 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined condition No.15 reads thus:
"3(15) The service of surplus employee due to discontinuance of posts in the department/office in the former department/office shall not be taken into account."
7. The aforesaid is required to be considered in light of the ratio laid down by the Hon'ble Supreme Court from time to time.
7.1 In case of Scientific Advisor to Raksha Mantri vs. V.M. Joseph reported in 1998 (5) SCC 305, the Hon'ble Apex Court held in paragraph 7 as under:
"7. This Court in Union of India & Ors. vs. C.N. Ponnappan, AIR 1996 SC 764 :1996(1) SCC 524, has held that, where an employee is transferred from one unit to another on compassionate ground and is placed at the bottom of the seniority list, the service rendered by him at the earlier place from where he has been transferred, being regular service has to be counted towards experience and eligibility for promotion."
7.2 In case of Dwijen Chandra Sarkar vs. Union of India reported in 1999 (2)SCC 119, the Hon'ble Apex Court held in paragraphs 10, 11, 14, 17 and 18 as under:
"10. It is to be noted that the transfer of the appellants from the Rehabilitation Department to the P & T Department was not on their request but was expressly stated to be in the public interest. But while doing so, it was clarified that their past service in the Rehabilitation Department would not count for'seniority'. The purpose of this restriction was that their transfer should not disturb the chances of promotion of those who were already working in the P & T Department. There is no doupt, that for the purpose of their regular promotions to higher posts in the P & T Department their seniority is to count only from the dated of their transfer to the P & T department. The transfer Page 14 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined order imposed this restriction. We are not concerned with the validity of this restriction. All that it means is that these two transfers will not alter the existing seniority of those in the P & T Department.
11. However, the position in regard to 'time-bound' promotions in different. Where there are a large number of employees in any department and where the employees are not likely to get their comparatively low-position in the seniority list, Government has found it necessary that, in order to remove frustration, the employees are to be given a higher grade in terms of employments - while retaining them in the same category. This is what is generally known as the time bound promotion. Such a time-bound promotion does not affect the normal seniority of those higher up.
14. The words " except seniority" in the 1983 circular, in our view means that such a benefit of a higher grade given to the transferees will in no way effect the seniority of employees in the P & T Department when the turn of the P & T employees comes up for promotion to a higher category or post. The said words 'except seniority' are intended to see that the said persons who have come from another department on transfer do not upset the seniority in the transferee department. Granting them higher grade under the scheme for time-bound promotion does not therefore offend the condition imposed in the transfer order. We are, therefore, of the view that the appellants are entitled to the higher grade from the date on which they have completed 16 years and the said period is to be computed on the basis of their total service both in the Rehabilitation Department and the P & T Department.
17. On the facts of the present case and especially in view of the aforesaid decisions, we are of the view, that when the transfer is in public interest, and not on request, the two employees transferred, cannot be in a worse position than those in the above rulings who have been transferred on request and who, in those case accepted that their names could appear at the bottom of seniority list. Even in case relating to request transfers, this Court has held, as seen above, that the past service will count for eligibility for certain purposes though it may not count for seniority.
18. Hence the transfer order and concerned circular of 1983 which required that the past service should not count for seniority, cannot have any bearing on eligibility for time bound promotion. Seniority and time bound promotions are different concepts. as stated above.
For the above reasons, we hold that the past service of the appellants is to be counted for the limited purpose of eligibility - for computing the number of years of qualifying service, to enable them to claim the higher grade under the scheme of time-bound promotions."
7.3 In case of Ajitsinh Chaturji Rathod vs. State of Gujarat reported in 2000 (4)GLR 3181, this Hon'ble High Court held in Page 15 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined paragraphs 5 and 6 as under:
"5. It is next contended by learned counsel for the respondents that the petitioner is entitled to count only such services who are in the same cadre and grade. If the services are rendered in different cadres though in the same grade, the same may not be considered by clubbing the same unless it falls within the other provisions of the scheme where services rendered into different cadres can be clubbed together for the purpose of availing the benefit under the scheme. There is some force in this contention. As noticed above, section 203 of the Act of 1961 envisages constitution of the Panchayat Services having different cadres levels namely, District Cadres, Taluka Cadres and Local Cadres. Thus, Statute envisages separate District Cadres within the services constituted for the State. While the Statute itself provides that a servant belonging to a Taluka cadre shall be liable to be posted, whether by promotion or transfer in any Gram or Nagar in the same Taluka and the servant belonging to the Local Cadre shall be liable to be posted whether by promotion or transfer to the same gram or Nagar as the case may be. For the inter district transfer of employees of District Cadres, it left the matters to be provided under the Rules. The Rules of 1968 provided for inter district transfer of a member of panchayat services belonging to a district cadre to another district cadre. Scheme in this regard remains unaltered even under Panchayat Act, 1993. Therefore, the petitioner who was a member of panchayat services of Surat District Panchayat was member of District Cadre Surat till he served within Surat District and when he was transferred to the panchayat services of Mehsana district, he became member of Mehsana District Cadre. Therefore, it cannot be said that he rendered service in same cadre through out. This position is further clear from the fact that where the situation like the present arises, the scheme has envisaged that where a government has made a transfer from one cadre to other cadre in public interest and pay scales of these posts are equal, the services rendered in both the cadres shall be taken into account for the scheme of higher grade scale subject to other conditions. As the scheme has made specific provisions for inter cadre transfer in the public interest, it has made no such provisions for such inter cadre transfers on its own request. In those circumstances, a question of clubbing of period must depend upon the provision governing such situation. Therefore, the two periods cannot be be clubbed together for the purpose of claiming benefits under the Scheme.
6. However, the question does not rest here. It is not envisaged anywhere that any part of the services is not to be treated for the purpose of conferring benefit of the higher grade scale, if the person is otherwise entitled to it without clubbing of the periods. The Scheme does not express its applicability only to same cadre and grade, but applies to `one and same cadre and grade'. The use of expression `one and same cadre' must be interpreted in the context of object of scheme viz. to provide time bound promotion at least once on completion of a period of service, since regular appointment. If that period is completed in any one cadre, without aid of clubbing, there is Page 16 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined nothing in the Scheme which can inhibit the incumbent from availing such benefit with effect from that date. If the incumbent has completed continuous regular service of requisite period, to be accounted for in that cadre, in more than two cadres of same grade, the benefit must go to the incumbent on the earlier of the two dates. Scheme has clear object of giving one promotional chance, in case actual promotion has not come one's way, on completion of nine years service in one and the same cadre after regular appointment. The question of continuous service for seniority in inextricably woven with the thread of granting promotion to incumbent atleast once on completion of nine years of regular service in one cadre to combat stagnancy. The question of taking into account aggregated period as to any two cadres will arise only in case where the services in one cadre does not satisfy the condition of requisite period of service in that cadre. However, if a person qualifies for that benefit, remaining in one and the same cadre at particular point of time, merely because of the exigencies of service later in time the incumbent has been placed in different cadre, he cannot be deprived of that benefit by confining the question of extending benefit only to the computation of period to his present cadre. What is requisite condition is that he should have spent 9 years of regular service which is accountable for the purpose of seniority in one and the same cadre and grade, not necessarily in the present cadre. If a man has served in one district cadre for 4 years and has been transferred to another district cadre at his own request and he has served there for six years, in that event in either of the cadre, he has not completed 9 years service and he cannot take advantage unless the both are clubbed together. In the other case, a person may have served in one cadre for more than 20 years and has been transferred to another cadre by loss of seniority. In such case, he is not deprived of the benefit of the scheme which has to operate from the date of entry in the service at different points when the conditions can be said to be fulfilled. In that event if a person has fulfilled the conditions for availing the benefit at any point, be it before his services are transferred in the present cadre affecting his seniority, there is no provision in the scheme which takes away that benefit because of the subsequent events. This is also in consonance with the object with which the scheme has been introduced."
7.4 In case of S.D. Patel vs. State of Gujarat reported in 2016 (6) SLR 569, this Hon'ble High Court held in paragraphs 29, 39 and 41 as under:
"29. I am of the view that the Government Resolution dated 16th August, 1973 was issued with a definite object. The object was to see that the persons who complete five years of service in the work charged establishment are converted into the employees on the temporary establishment. It is very unfortunate to note that the petitioners herein, despite such police in force and having Page 17 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined represented continuously in that regard, continued as work charged employees in the work charged establishment for years together. The fact that they continued almost for a period of more than two decades itself is suggestive of the fact that they could not have been treated as work charged employees for these many years. According to the Government Resolutions, the petitioners ought to have been absorbed from the work charged establishment to the temporary establishment on completion of five years of service. As this benefit was not granted, they were not given the benefits of the higher pay scales on competition of 9, 18 and 27 years of service. It is not in dispute that they were all appointed in accordance with the rules and regulations and that too, after a regular recruitment process. It is very unfortunate to note that they continued to work in the work charged establishment as work charged employees for years together without any promotional avenue. It also appears from the materials on record that the respondent No.3 had recommended to the State Government long time back i.e. immediately on completion of five years of service in the work charged establishment to consider the case of the petitioners and put them or rather confer upon them the status of being temporary employees. It appears that such recommendation was very conveniently ignored.
39. I am not convinced with any of the grounds referred to above. To reject this petition by upholding the grounds referred to above on which the claim of the petitioners has been turned down by the Government will amount to nothing but mockery of justice. It is very depressing to note that not even once in last 30 years the State Government thought fit to consider the case of the petitioners for being absorbed on the temporary establishment.
41. Thus, in view of the above, this writ application is allowed. I direct the respondents to grant the benefits of conversion of the petitioners from the work charged establishment to temporary establishment on completion of five years as work charged employees from the date of their initial appointment which is indicated in the chart at Annexure: 'A' (page - 34 to the petition), and accordingly, I further direct the respondents to grant the higher pay scales from the date the petitioners completed 9, 18 and 27 years of service, as the case may be, on the temporary establishment."
7.5 In Special Civil Application No.10019 of 1993 vide judgment dated 20.08.1999, this Hon'ble High Court held in paragraphs 10, 11, 12, 13 and 14 as under:
"10. Now, it is to be noted that visualising such a situation the Government itself has issued a Resolution dated 24.5.1993 that when a person is already in government service and thereafter he gets selected and appointed on any other post in government service and if Page 18 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined there is no break in service, such employee's previous services are to be taken into account for the purpose of fixation of pay, grant of leave, and for computation of pension but not for seniority. Such an employee who applies through proper channel and gets selected for any other post in the service of the State Government is not required to submit any resignation but is just to be relieved for resuming duty on the second post for which he is selected. It is thus clear from the aforesaid Government Resolution dated 24.5.1993 that such an employee is not to be given any benefit which is likely to hurt any other existing employee in the new cadre but benefits which can be given to him without adversely affecting any existing employee in the cadre are to be given to him and, therefore, taking into acount the previous service for the purpose of fixation of pay, grant of leave and computation of pension is not going to adversely affect the existing employees but the grant of seniority is bound to adversely affect the existing employees and, therefore, previous service cannot be taken into account for the purpose of fixing seniority. Therefore, nothing turns on the question whether the petitioners should be considered to be direct recruits on the establishment of this Court or whether the petitioners' recruitment was something less than direct recruitment but more than a transfer. Different considerations would arise if such previous services were not to be taken into account even for the purpose of pay fixation, leave or pension but since that is not the case, the aforesaid preliminary submission cannot be accepted.
PRINCIPAL CONTROVERSY
11. Now coming to the question about the change of cadre, there is no doubt that the cadre of private secretaries on the establishment of this Court is separate from the cadre of Private Secretaries (English Stenographer Grade-I) in the City Civil Court at Ahmedabad from where the petitioners came. In fact, this issue is no longer res integra and both the Hon'ble Judges of the Division Bench of the Apex Court have held so in C.G. GOVINDAN V/S STATE OF GUJARAT 1999 (1) GLR
512. The question which arises for consideration of the Court, therefore, is whether mere change of cadre disentitles a government employee from relying on his previous services for the purposes of getting the benefit of 9 year rule. On this question also the Apex Court in the case of Dwijen Chandra Sankar, AIR 1999 SC 598 has held that when employees are transferred from one department to another, subject to the condition that their past service in the previous department would not count for seniority, they are entitled to have their services in the first department taken into account for getting the benefit of the 9 year rule which rule is framed to relieve the employees from stagnation. The underlying object of this rule is that that transfer of an employee should not disturb chances of promotion of those who are already working in the new (transferee) Department. The Apex Court has made the following pertinent observations:-
"However, the position in regard to time-bound promotions is different. Where there are a large number of employees in any department and where the employees are not likely to get their promotion in the near future because of their comparatively low- position in the seniority list, Government has found it necessary Page 19 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined that, in order to remove frustration the employees are to be given higher grade in terms of emoluments while retaining them in the same category. This is what is generally known as the time-bound promotion. Such a time-bound promotion does not affect the normal seniority of those higher up."
(emphasis supplied) In the aforesaid decision, the Apex Court also referred to previous decisions given in RENU MALIK V. UNION OF INDIA, (1985) 3 SCC 305 & in A.P. STATE ELECTRICITY BOARD V. R. PARTHASARATHI (1998) 9 SCC 425 wherein it is held that even when the employees are transferred from one department to any other department on their own request and even when there is an undertaking that the services in the previous department shall not count for the purpose of seniority in the new department if the rules require minimum length of service for being eligible to the promotion to the higher post, services rendered in the previous department have to be considered for the purpose of eligibility criterion. The Apex Court in all the decisions has held that the seniority and eligibility are different concepts. The Court in terms held services rendered in another department determined the eligibility though it may not mention for seniority and this principle was applicable even when the transfer was at the employee's own request. In case of A.P. State Electricity Board (supra) the concerned employee was a government servant who was absorbed in the Electricity Board and the above principle was applied. In the instant case the petitioners were stenographers on the establishment of the City Civil Court at Ahmedabad. In the facts of the present case the above principle would apply and, therefore, petitioners are entitled to rely on their previous service rendered as English Stenographers on the establishment of City Civil Court for the purpose of getting time bound higher pay scales.
12. Moreover, the Government Resolution dated 5.7.19991 specifically provided in clause (ii) as under:-
"(ii) The first higher grade scale shall be granted on completion of 9 years of service in the relevant scale provided that the employee has not received more than two promotions earlier.
For the purpose of computation of 9 years service in the relevant scale, all service that counts for increment in that scale shall be taken into account."
The aforesaid words leave no room for doubt that all service that counted for increment in the scale of Rs.2000-3500 was required to be taken into account for the purpose of computation of 9 years of service. Admittedly, the petitioners' services in the posts of English Stenographer on the establishment of the City Civil Court were taken into account for the purpose of increments i.e. for the purpose of their pay fixation and therefore, the petitioners are entitled to get their service as Stenographers in the City Civil Court counted for the purpose of getting the benefit of 9 year rule. It was subsequently on 11.10.19991 that the Government issued clarification that if there is a change of cadre of service, service in the previous cadre cannot be Page 20 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined taken into account for the purpose of fixing the seniority. This so called clarification must be held to be arbitrary and violative of petitioners' right under Article 14 of the Constitution in view of the aforesaid principle laid down by the Apex Court in the case of DWIJENCHANDRA SARKAR AIR 1999 SC 598. A similar provision in the Government Resolution dated 16.8.1994 must also be held to be arbitrary for the same reason.
13. The learned counsel for the respondents have however expressed an apprehension that the petitioners and another Private Secretary (English Stenographer Grade-I) Class-II on the establishment of this Court have filed Special Civil Application claiming seniority in the cadre of Private Secretaries (English Stenographer Grade I) on the establishment of this Court on the basis of the services rendered by them as English Stenographers in the City Civil Court, Ahmedabad, and, therefore, the petitioners cannot be given any benefit of the higher pay scale by virtue of 9 year rule and also claim the benefit of seniority in the aforesaid petition.
The apprehension is quite justified and the petitioenrs must, therefore, be put to terms before the benefit of 9 year rule can be given to them. It is, therefore, made clear that before the petitioners are given the benefit of the aforesaid 9 year rule, each of them must give a separate undertaking that the petitioner does not and shall not claim any seniority in the cadre of Private Secretaries on the establishment of this Court on the basis of any services rendered prior to his joining to the establishment of this Court and the petitioner does not and shall not claim any benefit other than by way of pay fixation, leave, pension and the benefits of 9 year rule on the basis of the services rendered prior to the date of joining the establishment of this Court.
14. Having heard the learned counsel for the parties, for the reasons aforesaid this Court directs that subject to the condition precedent that each petitioner files a separate undertaking before the Registrar of this Court undertaking that -
(i) the petitioner does not and shall not claim any seniority in the cadre of Private Secretaries (English Stenographer Grade I) Class II on the establishment of this Court on the basis of any services rendered prior to his joining the establishment of this Court; and
(ii) the petitioner does not and shall not claim any benefit, other than pay fixation, leave, pension and the benefit being granted by this judgment, on the basis of the services rendered prior to the date of joining the establishment of this Court the respondents shall give the petitioners the benefit of the nine year Rule i.e. the higher grade scale with effect from which the concerned petitioner was entitled to get the higher grade scale under the Government Resolution dated 5.7.1991 on the basis that the services rendered by the petitioners in the cadre of Private Secretaries (English Stenographer Grade I) in the City Civil Court in the pay scale Page 21 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined of Rs.2000-3500 shall be counted for this purpose, though such services shall not be counted for the purpose of seniority, or for any purpose other than pay fixation, leave, pension and the benefit being granted by this judgment.
The aforesaid direction shall be complied with within three months from the date on which the concerned petitioner files such an undertaking before the Registrar of this Court." 7.6 In Special Civil Application No.8076 of 1995 vide order dated 24.07.2001, this Hon'ble High Court held in paragraphs 2 and 3 as under:
"2. Petitioner has filed this petition claiming graded scale of Rs. 1640- 2900 on completion of nine years service. The petitioner was appointed on 18-5-1984 as Junior Clerk in the office of Mamlatdar at Bhuj under Kutch district. Thereafter, at the request of the petitioner, he was transferred to Surendranagar district by an order dated 7-1-1993. According to the Government circular, if any inter district transfer is made at the request of an employee, that employee will be put at the lowest level of the grade in the seniority. While continuing service in Surendranagar district petitioner has completed nine years as clerk and according to the scale of pay fixed by the Government, petitioner is entitled to graded scale of Rs. 1640-2900 on the date he has completed nine years in the post of clerk. This benefit of graded scale has been denied to the petitioner on the ground that, since he is the junior most Clerk in Surendranagar District and unless he completes nine years service as Clerk in Surendranagar District, he is not entitled to the graded scale of Rs. 1640-2900.
3. It is submitted by Mr. Pancholi, learned AGP that, there may be seniors in Surendranagar district office in the grade of Clerk than the petitioner who has not completed nine years and incase the petitioner is given benefit of earlier service and graded scale of pay, then there will be an anomaly in the pay of the junior and senior in Surendranagar District office. I cannot agree with the submission of Mr. Pancholi, learned AGP appearing on behalf of the State respondents. Seniority in Surendranagar District has nothing to do with the earlier service of the petitioner in Kutch district as his services in Kutch district has not been wiped out and this will count for all purposes in Government service. The petitioner may be a junior because of his transfer to Surendranagar district at his request, but that has no connection with the pay. In service a junior can get higher pay than the senior under various circumstances and the present one can be one of those circumstances. In such cases if a junior transferred employee gets graded scale of pay in that event the seniors who has not completed nine years are not entitled to claim stepping up of their pay. Since there is no nexus between seniority and actual receipt of salary, I am of the view that an illegality has been committed by the respondent Government in not allowing graded scale to the petitioner. His earlier service may not be counted for the purpose of seniority, but for the purpose of graded scale, though the petitioner has rendered service in two districts, same should Page 22 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined be granted. Consequently I am of the view that, there is sufficient force in the petition and the petition deserves to be allowed. Accordingly the petition is allowed. Respondents are directed to accord graded scale of Rs. 1640-2900 to the petitioner from the date on which he has completed nine years in service, counting the services rendered in both the districts in the post of Clerk and pay the petitioner all consequential benefits. Rule made absolute to the aforesaid extent. I make no order as to costs."
7.7 In Letters Patent Appeal No.187 of 2003 with Civil Application No.7112 of 2002 in Special Civil Application No.8076 of 1995 vide order dated 20.03.2003, the Division Bench of this Hon'ble High Court held as under:
"The appellant, State of Gujarat, under Clause 15 of the Letters Patent, has assailed the Judgment of the Learned Single Judge, recorded on 14.7.2001, whereby the petition, by the respondent original petitioner, came to be granted with direction to the respondent to accord grade scale of Rs.1640-2900 to the respondent original petitioner, from the date on which he had completed 9 years in service, counting the services rendered in both the districts in the post of Clerk and also to pay the original petitioner, all consequential benefits, which in our considered opinion does not require any interference in exercise of powers, under Clause 15 of the Letters patent, for the reasons that the view taken by the Learned. Single judge and the ultimate conclusion recorded is quite justified and it is compatible and in consonance with the latest proposition of law. We therefore, left with no alternative but to dismiss the appeal at the Înception. The appeal therefore, t shall stand dismissed. As the appeal is dismissed, no orders on civil application."
7.8 In Misc. Civil Application No.1011 of 2003 in Letters Patent Appeal No.187 of 2003 vide order dated 30.04.2003, the Division Bench of this Hon'ble High Court held as under:
"1. In this Review Resolutions are relied on Application, Government by the applicant, State of Gujarat, in support of the plea that there is a fit case for review of the judgment and order, of this Court, dated 20-3- 2003 in Letters Patent Appeal No. 187 of 2003. We have anxiously and seriously heard the learned Assistant Government Pleader, MS. Manisha Lavkumar. There is no dispute about the fact that the GRS., which are sought to be pressed into services at the stage of review, came to our notice for the first time in the Review Application as they Page 23 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined are appended along with the Review Application, and, again, bearing in mind the circumscribed jurisdictional sweep of a review, we are of the opinion that the Review Application, on hand, deserves to be rejected at the inception. it is rejected. Accordingly,
2. A parting thought, may be, not expedient but, imperative, pursuant to the last moment submission raised by learned advocate, Mr. Ajmera that despite the order, of the learned Single Judge, dated 14th July 2001, the original-respondent authority, has yet not complied with, which is very, very unfortunate, requires subscription to this order. We therefore, direct while disposing of this Review Application that the original-respondent authority shall comply with the directions, of the learned Single Judge, expeditiously by the end of October 2003."
7.9 In Letters Patent Appeal No.229 of 2003 with Letters Patent Appeal No.230 and 321 of 2003 in Special Civil Application No.1179, 1180 & 1183 of 2002 vide order dated 05.05.2003, the Division Bench of this Hon'ble High Court held in paragraph 7 as under:
"7. After having heard the learned advocates appearing for the parties and after examining and evaluating the factual profile of the entire matter and also after having considered the authorities cited before us, we are of the view that the order, passed by the learned Single Judge, requires an interference by us while exercising appellate jurisdiction under Clause 15 of Letters Patent. The Hon'ble Supreme Court has, in the case of Dwijen Chandra Sarkar (Supra), specifically held "that the past service of the appellants is to be reckoned for the limited purpose of eligibility computing the number of years of qualifying service, to enable them to claim the higher grade under the scheme of time bound promotions. The Hon'ble Supreme Court has further held that the appellants will be entitled to the higher grade from the date on which they have completed 16 years computing the same by taking into account their past service in the Rehabilitation Department also along with the service in the P & T Department. They will be so entitled as long as they remained in the post of Assistant and till their normal promotion to a higher post according to Rules." Even the Division Bench of this Court in the case of State of Gujarat vs. Ajitsinh Chaturji Rathod - LPA No. 779 of 2000, decided on 4.12.2000, has taken the view that "mere transfer from Surat to Mehsana on the condition to be at the bottom, at the new station, upon request, would not, in any way, adversely affect the right to claim benefit of higher grade under the relevant G.R." In our view, the learned Single Judge is, therefore, not right in holding that for conferring of benefit of higher grade scale on completion of 9 years' service, the service rendered in Page 24 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined Mehsana District Panchayat alone can be considered. This view is contrary to the view taken by the Hon'ble Supreme Court, in the case of Dwijen Chandra Sarkar (Supra), and the Division Bench judgment of this Court in the case of State of Gujarat vs. Ajitsinh Chaturji Rathod (Supra)."
7.10 In Special Civil Application No.6767 of 2008 vide order dated 15.05.2008, this Hon'ble High Court held as under:
"The petitioners were originally appointed in the subordinate courts in the State of Gujarat in the post of Junior Clerk and thereafter they were appointed on the establishment of the High Court of Gujarat as such and have been serving for the last several years. The case of the petitioners is that after completion of nine years, the petitioners are entitled to be granted next higher scale and that their earlier service rendered in the subordinate courts should be clubbed together for getting the higher grade scale.
The defence of the respondents is that since the petitioners were transferred from subordinate courts to the establishment of High Court on their own request, they were to be placed at bottom seniority and therefore they are not entitled to be granted higher scale. Mr.Makwana, Assistant Government Pleader submitted that the Government employee who seeks transfer from one District to another District loses his seniority. This is a self-inflicted injury by virtue of which he abdicates his right of getting his seniority and therefore the petition deserves to be dismissed.
However, this point is no longer res-integra and has been decided by the Division Bench of this Court in the case of STATE VS. MULCHANDBHAI L. PATEL reported in 2004(1) G.L.R. 536 wherein it has been held at paragraph 8 that an employee on request transfer does not lose his length of service, may be that he loses his inter se seniority. Paragrah 8 of the said judgment is as under:
"The interpretation of the appellant-authorities that the employees shall not have entitlement even on completion of the requisite period of 9 years, 18 years or 27 years (which is later on revised) as the case may be, unless the employee has completed continuously the period of 9 years in the same cadre in the same district, is neither legal nor logical. It is also, not compatible with the object of the said Resolution of the Government. It is not the place where the employee has served that counts. It is the total period, that may be in more than one districts even on his request transfer, that has to be taken into consideration. In our opinion, therefore, the employees are entitled to the benefit of Higher Grade/Scale on completion of the requisite period of 9 years at the first stage, even by clubbing the period in the same grade, not seniority in the same district, even in case of transfer on request."Page 25 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024
NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined The cases of the petitioners herein and other similarly situated employees to the present petitioners were forwarded by respondent No.1 to respondent No.3 for approval. However, respondent No.3 - Assistant Examiner, Local Fund Account, Ahmedabad vide communication dated 22nd February 2008 (copy whereof is produced at AnnexureA to the petition) rejected the claim of the petitioners on the ground that the cases of the petitioners are not recommended by the concerned department of the State Government. That being the position, this Court feels that the petition deserves to be allowed. The objections raised by respondent No.3 vide communication dated 22nd February 2008 are quashed and set aside. Respondent No.3 is directed to implement the orders dated 1.10.2007 passed by the Registrar (Administration) and pay the arrears accrued as a result of the above order within a period of four weeks from the date of receipt of the order." 7.11 In Special Civil Application No.14225 of 2017 and allied matters dated 26.12.2019, this Hon'ble High Court held in paragraphs 13, 14 and 15 as under:
"13. From the above facts, it could be seen that similarly placed employees who were once declared surplus, came to be absorbed in the different institutes or industrial centers. The petitioners have also given details of the various centers where the vacancies are stated to be available. The mandate of Article 14 of the Constitution requires that the persons belonging to homogenous class shall be meted out similar treatment. The present petitioners, are therefore required to be treated in the same manner in the matter of absorption as the similarly situated surplus employees named in the foregoing paragraphs have been treated. The action on part of the respondents in not absorbing the petitioners eventhough the absorption is possible on the available vacancies, would tantamount to breach of Articles 14 and 16 of the Constitution.
14. In view of the above discussion, the petitioners of all the petitions except those already retired as mentioned above, would deserve the relief. Accordingly, all the petitions are disposed of by directing that the case of all the petitioners for absorption shall be considered positively keeping in view that similarly situated surplus employees have been absorbed in the different Industrial Training Institutes. The petitioners shall be entitled to be treated in similar way. The order for them shall be issued by the authorities to absorb them on the vacancies as may be available, within six weeks from the date of receipt of the present.
15. The petitioners who are retired, would be entitled to claim in accordance with law the post-retirement benefits as the question of Page 26 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined their absorption does not arise."
8. In light of the facts which are undisputed, as referred above, and the position of law as discussed above, vide the Government Resolution dated 05.07.1991, the employees were suffering stagnation who have been extended the benefits of stepping up to three higher grades on the completion of 9 - 18
- 27 years of service respectively, that is to say, on completion of 9 years of service, the employee was to be placed in first higher grade and on completion of 18 years of service, was to be placed in second higher grade and on completion of 27 years of service, the third higher grade. A Scheme was introduced vide Government Resolution dated 05.07.1991 duly modified by Resolution dated 06.05.1992 to give relief against stagnancy in the service of the employees having completed 9
- 18 - 27 years of service on 01.06.1987, shall be admissible at a time first, second and third higher grade respectively and the employee who had actually not completed 9 - 18 - 27 years on 01.06.1987 shall have benefit of higher grade as and when completes the same and was inhibited by the fact that where an employee has already availed the promotions prior to the commencement of the scheme which came into effect from 01.06.1987, shall not be eligible for such benefits. Page 27 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024
NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined In the facts of the present case, the petitioners were not promoted and on the said premise, are entitled to the benefits of the 2nd and 3rd higher grade scale from as and when due. The said Government Resolution provides that the benefits of higher grade scale are available to the employees serving in those cadres where the avenues of promotion are minimum. The assertion by the respondent - State is mainly on the prayer prayed for by the petitioners herein for grant of promotion and that, the promotion is not a fundamental right. Further, the contention raised in the reply is that if the petitioners are entitled to be considered for the promotion, the petitioner would not be eligible to claim the benefit of higher grade scale; both the prayers run contrary to each other. 8.1 In light of the position of law, as referred above, wherein it is held that merely because the petitioners are rendered surplus, would not in any way loose their right of higher grade scale. In light of the aforesaid, in a given case, even upon the request of transfer, though the employee inflicts injury upon his own seniority, yet the length of service alone is sufficient for entitlement of higher grade scale.
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NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined 8.1.1 Further, the other employees of the same cadre, who were put on deputation as per the Government Resolution dated 25.11.1994, have received the benefit of the 2 nd and 3rd higher grade scale from time to time. However, the respondents rather than giving the effect of Government Resolution dated 25.11.1994 considering the petitioners service on deputation, treated the petitioners as surplus. 8.2 In the facts of the present case, it is not that the petitioners on their own volition chose the transfer. It is by the respondents that the petitioners were transferred from particular office or a department; which seized to work and therefore, required to close down the said department. The petitioners were considered as surplus and transferred to the Sales Tax Department. Under such circumstances, the transfer of petitioners cannot be treated to have loosing the effect of their entire earlier service so as to deprive the petitioners for further benefits of the Government Resolution dated 16.08.1994. The past service of the petitioners is required to be counted for the purpose of eligibility for computing the number of years of qualifying services to enable the petitioners to claim higher grade scale.
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NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined
9. In the course of hearing, Mr. Hasurkar, learned advocate appearing for the petitioners, submitted that the petitioners herein are superannuated and pending the present petition, the petitioner No.1 herein has expired and therefore, question of promotion does not arise in view of Mr. Hasurkar, learned advocate, does not press the prayer with respect to the grant of promotion and has restrained the prayer to the grant of higher grade scale.
9.1 Ms. Nidhi Vyas, learned AGP appearing for the respondents, is not in a position to controvert the aforesaid factual position that the petitioners were appointed in the Irrigation department as Clerk-cum-Typist in the year 1980 upon undergoing regular selection process. The said department having closed on 29.12.1998, the petitioners were rendered surplus and transferred to the Sales Tax Department afresh.
10. Considering the aforesaid undisputed facts and the position of law as laid down by the Hon'ble Apex Court as well as this High Court, the petitioners are entitled to the benefit of higher grade scale upon completion of 9 years and second and Page 30 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024 NEUTRAL CITATION C/SCA/11447/2008 JUDGMENT DATED: 12/07/2024 undefined third higher grade scale upon completion of 18 years and 27 years respectively in absence of promotion as and when due, without relying on Clause 3(15) of the Government Resolution dated 16.08.1994. The higher grade scale is required to be granted to the petitioners from as and when due at the interest rate of 6% p.a.
11. In light of the aforesaid discussions, the respondent authority is directed to extend the benefits of 2 nd and 3rd higher grade scale with all consequential benefits available to the petitioners; as and when due, at the interest rate of 6% p.a., as expeditiously as possible preferably within a period of six months from the date of receipt of this order. The respondent authority to do the needful in light of the aforesaid direction issued by this Court.
12. For the foregoing reasons, by exercising extra-ordinary jurisdiction under Article 226 of the Constitution of India, the present petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) NEHA Page 31 of 31 Downloaded on : Fri Aug 02 21:41:36 IST 2024