Gujarat High Court
Sangada Rahul Kumar Lalsingbhai vs State Of Gujarat on 10 December, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21008 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
YES
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SANGADA RAHUL KUMAR LALSINGBHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ADITYA M KHANDELWAL(12130) for the Petitioner(s)
No. 1
MS SANDHYA D NATANI(3678) for the Petitioner(s) No. 1
MS NIRALI SARDA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 10/12/2024
ORAL JUDGMENT
1. Heard learned advocate Ms. Sandhya D. Natani appearing for the petitioner and learned Assistant Government Pleader Ms. Nirali Sarda appearing for the respondent - State.
2. With the consent of the parties, the matter was Page 1 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined taken up finally. Hence, RULE. Learned Assistant Government Pleader Ms. Nirali Sarda waives the service of rule on behalf of respondent - State.
3. By way of this petition, the petitioner has prayed for quashing and setting aside the impugned order of termination dated 27.9.2021 and has further prayed for modification of reinstatement order dated 30.10.2021 and to make it effective from initial date of appointment i.e. 24.9.2019 and to grant continuity, promotion to the post of State Tax Officer Class-II with arrears and all consequential benefits of seniority, which the petitioner is entitled to, in stipulated time. In sum and substance, the petitioner has challenged the order of termination dated 27.9.2021 and has prayed for continuity of services and all consequential an incidental benefits flowing from the order of reinstatement with continuity of service.
4. Learned advocate Ms. Sandhya Natani appearing Page 2 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined for the petitioner narrated facts of the petition which are as under :-
4.1 That the present petitioner was appointed as Class III - Commercial Tax Inspector in the office of Deputy Commissioner of Commercial Tax Office, (Vartud-12) in Vadodara District at a fixed pay of Rs. 10,000/-
on contractual basis for a period of five years. The petitioner's appointment was made vide order dated 7.12.2013 and the said order specifically states that the appointed candidate must possess basic knowledge of Computer in form of CCC Certificate. As the petitioner already possess the CCC course from DOAEC Society, the petitioner was appointed. As per the condition of service vide appointment order dated 7.12.2013, for getting regularize the services of the petitioner, he must undergo training and have to pass pre service exams as well as a computer proficiency exams and if the petitioner fails to clear those requirements, his services Page 3 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined would not be regularized.
4.2 Accordingly, upon completion of five years services as contractual employee, petitioner's services were regularized vide order dated 6.8.2021 with effect from 24.9.2019 and as per Condition No.12(C) of the Government Resolution dated 28.3.2016, a person can be regularized upon completion of five years contractual period and upon regularization of his services within a period of two years, he will have to pass a computer proficiency test. In the instant case, the petitioner's services were regularized vide order dated 6.8.2021 with effect from 24.9.2019 and therefore, the petitioner was required to pass computer proficiency test i.e. CCC examination. 4.3 It is the case of the petitioner that on account of COVID-19 pandemic, there was national lock-down from 24.3.2020 and therefore, website for online for CCC application was closed for many months and therefore, the Page 4 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined petitioner applied for CCC exam before SPIPA on 6.8.2021 and before Gujarat University on 11.8.2021.
4.4 The petitioner applied before the Gujarat University on 11.8.2021 and ultimately, could clear the aforesaid examination on 6.10.2021. In the meantime, the respondents computed the period of two years from his date of regularization i.e. 24.9.2019 and as the petitioner did not pass the CCC examination before 24.9.2021, his services were terminated vide order dated 27.9.2021.
4.5 It is aforesaid order that is under challenge, as the petitioner cleared the CCC examination on 6.10.2021 vide order dated 30.10.2021, the petitioner was reinstated in the services but seniority of the petitioner was not protected and that is how the petition is preferred with the prayers which are already narrated in foregoing paragraphs. Page 5 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024
NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined 4.6 Learned advocate Ms. Sandhya Natani submitted that the issue on hand is a covered issue and the Co-ordinate Bench of this Court while deciding Special Civil Application No. 7255 of 2016 with Special Civil Application No. 10287 of 2017 vide common oral judgment dated 20.3.2019 in the case of Prajapati Manoj Shakarabhai Versus State of Gujarat and others, has dealt with this issue and has taken a view that once the petitioner has applied for CCC examination before due date i.e. five years of contractual appointment and two years period of regularization, the authority could have waited for outcome of the aforesaid examination and by holding the termination of the petitioners of that petition illegal, the benefits of continuity of services and other benefits were granted vide aforesaid judgment and therefore, the similar treatment be given to the present petitioner as well.
5. Learned Assistant Government Pleader Ms. Nirali Page 6 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined Sarda appearing for the respondent - State though opposed the petition vehemently and pointed out from the reply that as the petitioner could not pass the examination of CCC examination within a period of seven years i.e. five years contractual period and two years period of regularization, the petitioner is not entitled to claim continuity of service and seniority.
5.1 Learned Assistant Government Pleader Ms. Nirali Sarda submitted that as the petitioner could pass the examination on 6.10.2021 vide order dated 30.10.2021, he is already reinstated and therefore, this petition is absolutely misconceived and no prayers be granted and petition is required to be dismissed. However, learned Assistant Government Pleader Ms. Nirali Sarda could not point out that how the decision in case of Prajapati Manoj Shakarabhai Versus State of Gujarat dated 20.3.2019 in Special Civil Application No. 7255 Page 7 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined of 2016 with Special Civil Application No. 10287 of 2017 is not applicable in the facts of the case. However, she prayed for dismissal of petition.
6. I have heard learned advocates appearing for the respective parties and perused the record. On perusal of record, certain undisputed aspect emerges is that the petitioner joined the services under the respondents on contractual basis for a period of five years from 7.12.2013 and completed five years period and thereafter, on account of Government Resolution dated 28.3.2016, his services were regularized vide order dated 6.8.2021 with effect from 24.9.2019.
7. The petitioner applied for CCC examination before Gujarat University on 11.8.2021 and cleared the said examination on 6.10.2021 and in the meantime, as the petitioner could not successfully clear CCC examination by 24.9.2021 that is within a period of total seven years from his initial date of appointment, the Page 8 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined petitioner services were terminated vide order dated 27.9.2021 and subsequently, the petitioner was reinstated upon clearing the CCC examination vide order dated 30.10.2021. However, the seniority of the petitioner was not protected and the interregnum period was treated as break in service.
8. Now, in light of above facts, if the decision relied upon by learned advocate Ms. Sandhya Natani is considered in the aforesaid decision dated 20.3.2019 in case of Prajapati Manoj Shakarabhai (Supra), the Co-ordinate Bench of this Court has in similar set of facts in paragraphs No. 8 to 13 observed as under :-
"8. I have given my thoughtful consideration to the submissions advanced by the learned advocates appearing for the respective parties.
9. The Finance Department of State Government vide resolution dated 16.02.2005 introduced a policy of contractual appointment for the post of contractual appointment for the post of Class-III and Class-IV for a period of five years with a condition that the candidates must possess the knowledge of Page 9 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined computer application. Thereafter, the General Administration Department introduced a clarificatory Circular dated 17.12.2007 stating that prior to the appointment or entering in a government job, a candidate must possess a CCC certificate. It appears that there are various clarificatory circulars issued by the state government in this regard. Thereafter, vide government resolution dated 23.10.2015, the state government issued further clarificatory resolution clarifying resolution dated 04.06.2009. The resolution dated 04.06.2009 is not produced by either of the parties. The resolution dated 23.10.2015 clarifies that an employee has to pass the CCC/CCC+ examination within two years of after he is put in a regular pay scale, and if he fails to pass the same then his service will be terminated provided that if he thereafter passes the same, he will be reinstated in service without the benefit of seniority.
10. It is not in dispute that the petitioner, who was appointed on fix pay on 02.03.2009, was regularized in service with effect from 16.03.2014. The State Government had issued resolution dated 23.10.2015 after the date of his regularization promulgating that such employees are required to pass CCC examination within a period of two years from the date of regularization. Hence, the respondents have considered the period prior to the date of issuance of regularization in the case of the present petitioner. The respondents were required to give two years from the date of issuance of the resolution instead they have given retrospective effect, which has curtailed the period of two years. Such Page 10 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined action of the respondents is illegal. The petitioner would have only four to six months to pass the CCC/CCC+ examination, if the period is accounted with effect from 16.03.2014, the date when the petitioner was regularized.
11. Be that as it may, it appears that the petitioner had applied before the Gujarat Forensic Science University, Gandhinagar for appearing in the CCC examination, which was conducted on 06.03.2016. The result of which was awaited, the respondents thereafter without awaiting final result, have terminated the service of the petitioner on 18.04.2016. It is also not in dispute that the petitioner had also applied before the SPIPA on 03.07.2015 for appearing in the CCC+ examination, the same was cleared on 16.06.2016. The result of the CCC examination, which was undertaken by the present petitioner and held at Gujarat Forensic Science University, Gandhinagar, was declared after the termination of service of the petitioner and it appears from the result that the petitioner had failed with 2 marks in theory. Pursuant to the passing of the examination, the petitioner was reinstated in service on 17.06.2016 without continuity of service in view of clause(2) of the Government Resolution dated 23.10.2015. The petitioner cannot be denied seniority by placing reliance on clause (2) of the Government Resolution dated 23.10.2015, since the resolution cannot be made applicable retrospectively to the petitioner, who is appointed and regularized prior to its issuance. The petitioner cannot be made suffer on two counts firstly, his period of passing the departmental exam is curtailed from 2 Page 11 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined years to 4 to 5 months, and secondly, he is not assigned the continuity of service and seniority.
12. In the considered opinion of this Court, the respondents should have waited for the result of the examination before terminating the service of the petitioner. Unquestionably, the petitioner has cleared CCC+ examination on 16.06.2016, which he had applied on 03.07.2015 before SPIPA.
13. Under the circumstances, the present writ petitions are allowed. The petitioner cannot be denied the benefits of continuity of service as well as seniority with effect from 16.03.2014. The respondents are hereby directed to confer the continuity/seniority to the petitioner and his result of the departmental examination, which is kept in sealed cover, shall also be opened. If it is found that the petitioner has cleared the same, the same may be implemented forthwith and benefits accruing therefrom shall be granted to him. Necessary orders shall be passed within a period of one month from the date of receipt of this order. Rule is made absolute. Registry to place a copy of this judgment in the connected matter."
9. I have noticed the fact that in that petition also the petitioner applied for CCC examination before the due date i.e. before completion of two years service as regularized employee and at the time when the result was awaited, as the result was not out but period of two years after Page 12 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024 NEUTRAL CITATION C/SCA/21008/2022 JUDGMENT DATED: 10/12/2024 undefined regularization was over, his services were terminated and that action was held to be bad and the benefits of continuity of services and consequential benefits were directed to be given to the petitioners vide above judgment by the Co-ordinate Bench.
10. Considering the fact that the learned Assistant Government Pleader Ms. Nirali Sarda could not point out that how the aforesaid judgment would not applicable in the facts of the present case as well as considering the similarity of facts in respect of present petition and petitioner of that petition, the order of termination dated 27.9.2021 which was passed without waiting for the result of the CCC examination for which the petitioner had already appeared on 11.8.2021 and successfully passed the same vide result dated 6.10.2021 is required to be quashed and set aside by holding the same to be bad in law. Accordingly, order dated 27.9.2021 is hereby quashed and set aside. Page 13 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024
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11. Considering the fact that the order dated 27.9.2021 is quashed and set aside it it further directed that the interregnum period between 27.9.2021 and 30.10.2021 may not be treated as break in service and the services of the petitioner be treated as continuous service and it is further held that the action of the respondents of not granting the seniority to the petitioner is bad and seniority of the petitioner be counted from his initial date of appointment i.e. from 7.12.2013 for all purposes and all the benefits to which the petitioner is entitled to may be considered and counted from 7.12.2013 as if no order of termination was ever passed and there was no break in the service of the petitioner. Petitioner's pay fixation and all other benefits flowing form the order whereby the seniority of the petitioner is protected be recalculated and the petitioner may be paid the same as early as possible and preferably within a period of six months. Page 14 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024
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12. As far as the petitioner's prayer for issuing necessary direction for considering her case for promotion is concerned, it is directed that the petitioner may make a representation on the basis of this decision to the appropriate authority and authority may consider the same in line of this decision.
13. Needless to say that the interregnum period between 27.9.2021 to 30.10.2021, the respondents are not required to pay the actual benefits but the said period is required to be considered notionally.
14. With the aforesaid observation and direction, the present petition is allowed to the above extent. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(NIRZAR S. DESAI,J) Pallavi Page 15 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Dec 13 2024 Downloaded on : Mon Dec 16 21:23:49 IST 2024