Central Administrative Tribunal - Delhi
Shri S.N. Terdal S/O Sh. Neelappaterdal vs The Secretary on 15 November, 2011
Central Administrative Tribunal
Principal Bench
OA No. 2851/2011
New Delhi, this the 15th day of November, 2011
Honble Mr. Justice V.K. Bali, Chairman
Honble Dr. R.C. Panda, Member (A)
Shri S.N. Terdal s/o Sh. NeelappaTerdal,
R/o 5 LF Safdar Hasmi Marg,
Bengali Market,
New Delhi 110 001. Applicant
(Applicant in person)
Versus
The Secretary
Department of Legal Affairs,
Ministry of Law & Justice,
IVth Floor, A Wing, Shastri Bhawan,
New Delhi 110 001.
2. The Secretary,
Ministry of Personnel and Training,
Public Grievances and Pension,
North Block, New Delhi.
3. The Secretary,
Union Public Service Commission,
Shahjahan Road, Dholpur House,
New Delhi. Respondents
(By Advocate: Mr. Rajesh Katyal for R-1 & R-3.
Mrs. B. Rana for R-3.
ORDER
Justice V.K. Bali, Chairman:
S.N. Terdal, applicant herein, who belongs to the Cadre of Government Advocates, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking direction to be issued to the Secretary, Department of Legal Affairs, Ministry of Law & Justice, the first respondent herein, to treat him as member of the de-merged cadre of Legal Advisers of ILS since its inception i.e. 10.05.2008. He also seeks a direction to be issued to the same respondent to show his name above the name of Dr. Geeta Rawat after holding review DPC to the post of Joint Secretary in the Legal Adviser Cadre of ILS in the Department of Legal Affairs.
2. Before we may advert to the pleadings made in this Original Application, we may mention that there were three Cadres in Ministry of Law of the Government of India being cadres of Legal Adviser Service, Law Officer Service and Government Advocates Service. These cadres were merged, vide orders dated 21.03.2003. On merger of cadres, the seniority was to be determined according to the instructions issued by the Department of Personnel & Training, and a provisional consolidated seniority list was issued on 02.05.2003, which placed the incumbents of Law Commission en-block below the ILS Officers. J.T. Sulaxan Rao & another, being aggrieved by the seniority list aforesaid, filed OA No. 450/2006 in this Tribunal. The applicant, for the same relief, filed a separate Original Application bearing OA No.1609/2006. Both these OAs came to be disposed of, vide a common order dated 17.04.2007 by issuing some directions, which would be adverted to hereinafter. Suffice may it to mention at this stage that against the orders passed by this Tribunal, two writ petitions one on behalf of J.T. Sulaxan Rao & another and the other by the applicant herein, came to be filed before the High Court of Delhi. During pendency of the writ petitions, in view of the observations made by the Tribunal in its decision dated 17.04.2007 recorded in both the OAs as referred to above, Government de-merged all the cadres, thus, restoring status quo ante. J.T. Sulaxan Rao and Subhash Chandra Mishra being aggrieved by the de-merger, filed OA No. 22/2010, which has since been dismissed by a detailed order on 15.07.2011. We have been informed by learned counsel for the respondents, though we could not verify, that the writ petition filed against the order aforesaid has since been dismissed by the Honble High Court of Delhi.
3. Primarily, it is the case of the applicant that on de-merger of three Cadres, he was necessarily to be given an option regarding allocation of one of the de-merged cadres after de-merger w.e.f. 10.05.2008. The only question being that as to whether on de-merger the applicant was to be given an option for allocation to one of the de-merged cadres, it may not be necessary to give the facts in detail. However, the earlier litigation being relevant would need a mention.
4. The Tribunal, while disposing of earlier two OAs, where the issue was as regards the seniority fixed after merger, recorded a lengthy order taking into account various aspects of the case. We may reproduce paragraph nos.109 and 110 of the Tribunals order, which read as follows:-
109. We are not to suggest ways and means to the Government but as we have been made aware that ILS cadre has requested for de-merger, it is at the wisdom of the Government on reconsideration of the entire issue to take steps, which are in consonance with law and not averse to the rights and interests of their employees, irrespective of the cadre. We are also aware that subsequent to merger without reckoning the past service of merged category, certain promotions have been ordered, which are impugned along with seniority list but as we are sending back these matters to the Government for reconsideration in the light of observations made by us, we would not like to disturb these accrued benefits to the employees, which may be subject to the final decision taken by the Government. Our paramount consideration is to impress upon the Government to resolve this dispute, genesis of which is the creation of the Government.
110. In the result, both these OAs are disposed of with a direction to the official respondents to reexamine the entire matter in right perspective and in the context of the grievance raised by the erstwhile incumbents of Law Commission, Government Advocates of Central Agency and ILS cadre and thereupon, keeping in view our observations, take a conscious decision to redress the grievances of applicants and private respondents as well. The aforesaid exercise shall culminate into a final decision taken through a well-reasoned speaking order to be passed within a period of three months from the date of receipt of a copy of this order. No costs.
5. Against the order of the Tribunal whereas J.T. Sulaxan Rao and another filed writ petition bearing WP(C) No. 1385/2008, the applicant appears to have filed two writ petitions bearing WP(C) Nos. 4398/2007 and 4241/2008. The Government, as mentioned above, in the meanwhile, passed order dated 27.09.2007. While disposing of the writ petitions filed by the applicant, High Court observed that the Tribunal while disposing of the OA had directed the official respondents to re-examine the entire matter in the right perspective and in the context of the grievance raised by the erstwhile incumbents of the Law Commission, Government Advocates of the Central Agency as well as the Legal Advisors of the Indian Legal Service keeping in view the observations made by the Tribunal, and it would appear that one of the reasons that weighed with the Tribunal in giving this direction was that during the pendency of the OA a representation was made by the Legal Advisors of the Indian Legal Service cadre for de-merger, and that was noted by the Tribunal that as a result of the merger, rather a chaotic situation had arisen and this was perhaps not in anybodys interest. The High Court culled out the main grievance pertaining to the observations made by the Tribunal and the basic reasons on which directions were given to the official respondents to re-examine the entire matter. However, as during pendency of the writ petition in apparent compliance of the directions given by the Tribunal, the respondents had passed order dated 27.09.2007, it was observed that since a fresh and separate seniority list has been issued in respect of all three cadres, the original grievance of the applicant with regard to the combined seniority list dated 24.03.2006 would not survive, rather, it has become infructuous. When the two writ petitions filed by the applicant came to be disposed of by dictating the orders in the open court, counsel representing the applicants in the writ petition filed on behalf of J. T. Sulaxan Rao and another requested the Honble Bench to hear him since he had challenged the order dated 17.04.2007 passed by the Tribunal. Therefore, so as not to prejudice their case, the order in writ petition was kept in abeyance for the next date i.e. 08.07.2009. However, the Bench was of the view that the writ petition has become infructuous and the same was dismissed as such. The review application filed by the applicants was dismissed on 04.09.2009.
6. It is after the decision of the High Court that J.T. Sulaxan Rao and another filed Original Application bearing OA No.22/2010. They belong to cadre of Law Officers of Law Commission of India. It would appear from the order dated 27.09.2007 that pursuant to directions given by this Tribunal in the OAs referred to above, the respondents constituted a Committee of three senior officers of the department, which held meetings with various members of ILS, who tendered their views/opinions. The two Members of the Committee submitted their report on 19.06.2007 and the Chairman of the Committee submitted his report on 17.07.2007. Perusal of the two reports, as recorded in the order dated 27.09.2007, would manifest that almost all the officers of ILS were not happy with the merger as they had some grievance or the other with the same. The erstwhile Legal Advisers stated that they would be facing difficulties in performing duties in courts or conducting research in Law Commission. They also expressed that merger of the Law Officers of Law Commission and Government Advocates in ILS amounted to backdoor entry. They styled the merger to be illegal. The erstwhile Law Officers in Law Commission stated that the post merger experience had worked very well and the merger is in public interest, so their past service in Law Commission should be counted in the ILS. As regards giving benefit of past service to them, it is observed in the order that the same was not correct as the merger was initiated on their own request and they had given an unconditional undertaking that they would not claim any right which may prejudice the interest of the existing incumbents of ILS in the comparable grade. The view expressed by Government Advocates of Central Agency Section and Central Government Advocates of Branch Secretariats has also been recorded in the order. In the context of the contents of the two reports of the Committee and observations made by this Tribunal, it was observed that the process of merger was initiated on the request of the Law Officers of Law Commission and Government Advocates, and it was thought that some advantage will accrue to this department as the department would have to deal with one unified ILS cadre, and separate promotions, transfers for ILS cadre may not be processed. But it was not strictly in public interest rather as envisaged by DOP&T, it has led to various litigations and in fact it has harmed the public interest. It was further observed that harmful effects of the merger outweigh the benefits accrued to the Government. Paragraph nos.8, 9 and 10 of the order dated 27.09.2007, after recording as mentioned above, read as follows:-
8. In view of CATs observations in paras 106 and 107 that incumbents of ILS have not been heard, their representations against merger have not been paid any heed to by the Ministry of Law, their rights are prejudicially affected and that it is settled law that when a policy decision affects constitutional rights in a judicial review, the only direction which can be issued by the Courts is to afford an opportunity to the government to undo the wrong and on damage control exercise, reconsider the matter, as held by the Apex Court in Union of India & Others Vs. K.S. Okkutta, (2002) 10 SCC 2266, it has been decided to demerge all the erstwhile cadres of Law Officers of Law Commission of India; Government Advocates in Central Agency Section & Central Government Advocates in the Branch Secretaries in Mumbai and Kolkatta from Indian Legal Service and create following three different cadres within Indian Legal Service in the Department of Legal Affairs:-
(1) ILS cadre of Legal Advisers in the Main Secretariat and Branch Secretaries:- This ILS cadre will comprise of erstwhile cadre of Legal Advisers and will retain their earlier designation of Legal Advisers consisting of posts of Assistant Legal Adviser, Deputy Legal Adviser, Additional Legal Adviser and Joint Secretary & Legal Adviser.
(2) ILS cadre of Law Officers in the Law Commission of India:- This ILS cadre will comprise of erstwhile cadre of Law Officers in Law Commission of India and will also retain their earlier designation of Law Officers consisting of posts of Assistant Law Officer, Deputy Law Officer, Additional Law Officer and Joint Secretary & Law Officer.
(3) ILS cadre of Government Advocates in Central Agency Section and Branch Secretariats in Mumbai and Kolkatta:- The duties attached to the erstwhile cadres of Government Advocates in Central Agency Section & Central Government Advocates in the Branch Secretariats in Mumbai and Kolkatta were very much similar and as such it has been decided to have one single ILS cadre of Government Advocates in Central Agency Section & Central Government Advocates in the Branch Secretariats in Mumbai and Kolkatta. They will be designated as Government Advocates and this cadre will consist of the posts of Assistant Government Advocate, Deputy Government Advocate, Additional Government Advocate and Senior Government Advocate. Consequently the erstwhile cadre of Central Government Advocates in Branch Secretariats in Mumbai and Kolkatta will be required to pass the Advocate on Record exam as required under Supreme Court Rules on their posting in Central Agency Section. It has also been decided that the only post of Government Advocate in Central Agency Section will be downgraded from the pay scale of Rs.16400-20000 to the level of Addl. Government Advocate in the pay scale of Rs.14300-18300 after Shri P.Parameshwaran retires in November, 2007. Further, the method of recruitment to the grade of Additional Government Advocate and Senior Government Advocate will be by promotion/ deputation.
9. The above proposed creation of the three different cadres of ILS will also address the observations of CAT in para 108 of its judgment wherein it is stated that in the case of non-availability of promotional avenues in a cadre, Government should take steps to redress the situation and create promotional avenues but if this interest clashes in implementation thereof with the right and interest of others, a methodology should have been adopted, which would have without disturbing the right of either party amicably achieve the purpose without any inter-se dispute between the employees of the cadres. Creation of the ILS cadre of Government Advocates in Central Agency Section & Branch Secretariats in Mumbai and Kolkatta will give promotional avenues to the Government Advocates as they will have more posts in the grade of Addl. Government Advocates and Senior Government Advocates. The Law Officers of Law Commission already had four grades in their hierarchy prior to merger i.e. Secretary and Law Officer; Deputy Law Officer; Addl. Law Officer; and Joint Secretary and Law Officer. An officer appointed to the grade of Asstt. Law Officer may get promotion to the rank of Joint Secretary and Law Officer as happened in the case of Shri Sushil Kumar who rose from the lowest grade of Junior Law Officer to the rank of Joint Secretary and Law Officer prior to merger with ILS. As such, promotional avenues exist in Law Commission.
10. The above proposed demerger of the existing ILS cadre and proposed creation of three new ILS cadres shall come into force from the date of publication of the formal notification to be issued in the official gazette amending the Indian Legal Service Rules for the purpose.
7. The challenge to the order of de-merger, as mentioned above, has since been repelled by this Tribunal, vide its order 15.07.2011 recorded in OA No.22/2010 filed by J.T. Sulaxan Rao & another. The applicant, who belongs to the Cadre of Government Advocates, has not challenged the order of de-merger but, as mentioned above, would insist that even after de-merger, option was to be taken from him for allocation to one of the de-merged cadres. The applicant says that he made a representation that he be treated as member of the de-merged cadre of Legal Advisors of ILS since its inception i.e. 10.05.2008. It is the case of the applicant that respondent nos. 1 & 2 have impliedly admitted that there was allocation after the de-merger, but stated that as per Tribunals directions contained in paragraph no.107 of the judgment dated 17.04.2007 recorded in his earlier OA, he is not entitled to be allocated to any other cadre other than the de-merged cadre of Government Advocates of ILS. The only issue, as mentioned above, is, thus, as to whether, on de-merger, the applicant was to be given an option and, if so, to allocate him the cadre that he would have been given after option i.e. cadre of Legal Officers. We will deal with this issue in the context of submissions made by the applicant, who appears in person, but we may mention at this stage that one of the reliefs as asked for by the applicant is that he should be shown senior to Dr. Geeta Rawat after holding a review DPC to the post of Joint Secretary in the Legal Adviser Cadre of ILS in the Department of Legal Affairs as on 01.07.2008 and that Dr. Geeta Rawat has not been arrayed as party respondent in the present Original Application.
8. From the facts as may be culled from the narration as given above in brevity would just reveal that the respondents after issuing notification dated 10.05.2008 in exercise of powers vested under Article 309 of the Constitution of India de-merging the three cadres, ought to have taken option from the applicant to allocate him to one of the three de-merged cadres i.e. cadre of Legal Affairs and assign him the seniority over and above Dr. Geeta Rawat. As mentioned above, the only plea of the applicant is non-obtaining of his option. This being a pure and simple question of law, the applicant would endeavour to bring home the point only by judicial precedents. In that regard, he has placed reliance upon two decisions of Honble Supreme Court in the matter of K. Ravindranath Pai and Another v. State of Karnataka and another, 1995 Supp (2) SCC 246 and a Constitution Bench decision of the same very Court in the matter of State of Gujarat and another v. Raman Lal Keshav Lal Soni and others, (1983) 2 SCC 33.
9. We have carefully gone through the two judicial precedents cited by the applicant, but, on facts, find no parity whatsoever with the present case. We may reiterate that the present is a case where three cadres were separate. They got merged. Merger was found to have created chaotic situation. This Tribunal in Original Application bearing No.22/2010 observed that while de-merging the three Cadres, status quo ante has been restored. The applicant on de-merger has gone to the cadre to which he belonged before merger. It is not even the case of the applicant that some favourable conditions that may have been made available to him due to merger would be taken away with de-merger or that he shall be discriminated in any manner vis-`-vis officers of other two cadres. The facts of K.Ravindranath Pai & Anr. Vs. State of Karnataka & Anr.s (supra) would reveal that the appellants before the Supreme Court, who would challenge the order of Tribunal, were initially diploma-holders in engineering. They were recruited as Supervisors in the year 1960 and 1961 in the Public Works Department of Karanataka State. Later, they acquired degree in civil engineering and graduation in 1967 and 1970 respectively. At the time of their recruitment, recruitment rules envisaged that only degree-holders were entitled to be appointed as Junior Engineers, whereas diploma-holders could be appointed as Supervisors. In 1969 this position was changed and both the cadres of Junior Engineers and Supervisors were merged into one cadre of Junior Engineers. This was followed by an order of the Karnataka State in 1971 extending identical pay scales with retrospective effect from 01.01.1957 to both graduate and diploma-holder junior engineers. The Karnataka State by another order dated 09.01.1974 sought to bifurcate the service into two cadres, namely, Junior Engineer (Division-I) and Junior Engineer (Division-II). The former cadre was to comprise of degree-holders and the latter of diploma-holders. This bifurcation of cadres was given effect retrospectively w.e.f. 03.07.1969 and was sought to be supported by an enactment called the Karnataka State Civil Services (Classification and Scale of Pay of Non-graduate Junior Engineers of the Public Works Department) Act, 1975 being Act 9 of 1975. The Act provided for classification and scale of pay admissible to non-graduate Junior Engineers of the Public Works Department of the State of Karnataka. By virtue of provisions contained in Section 2 of the said Act, the posts of non-graduate Junior Engineers were declared to have existed with retrospective effect from 01.11.1956, whereas by sub-section 2(1)(ii) of the said Act, it was provided that the scales of pay admissible to such non-graduate Junior Engineers were to be only those specified for such category of posts and not those admissible category of Junior Engineer graduates. These scales were also given retrospective effect from 01.11.1956.
10. What emerges from the aforesaid facts is that by the Act of 1975 not only the different scales of pay were made but the same were also from retrospective effect. The bifurcation was also from a retrospective date. It is also pertinent to mention here that both the appellants had obtained graduation degree at a time when the Act of 1975 came to be passed. As regards retrospective operation of the Act of 1975, which was sought to be introduced by Section 2(1)(i), it was held by the Apex Court that in view of the settled legal position, retrospective bifurcation of the common cadre of Junior Engineers into two cadres of Junior Engineers (Division-I) for graduates and Junior Engineers (Division-II) for non-graduates from 01.11.1956 was inoperative in law. Section 2(1)(ii) could not operate retrospectively to destroy common pay scales available to both the Junior Engineers graduates and non-graduates. Section 2(1)(i) also could not operate retrospectively to bifurcate the said common cadre with effect from 01.11.1956. It would have only prospective effect. Consequently, the bifurcation of pay scales as well as of the common cadre of Junior Engineers would legally become effective at the highest from 09.01.1974 when the Government order of even date introducing such a scheme saw the light of the day. This proposition of law would have no connection with the facts of the present case. Further, inasmuch as the appellants before the Supreme Court had already obtained graduation degree by the time the Act of 1975 came into being, it was held that when the question of allotting the appellants to the proper bifurcated cadre of Junior Engineers w.e.f. 09.01.1974 came up, the respondents were bound to treat the appellants as belonging to the bifurcated cadre of Junior Engineers (Division-I) for graduates with effect from 09.01.1974 and not from 1967 and 1970 retrospectively, as upto 08.01.1974 there was a common cadre of Junior Engineers to which the appellants belonged along with other incumbents and the cadre of Junior Engineers (Division-I) saw the light of the day on 09.01.1974.
11. What emerges from the facts as mentioned above is that both the appellants had done graduation degree in 1967 and 1970 respectively at a time when it was a merged cadre. On de-merger when the distinction was on the basis of qualification and the appellants had obtained the requisite qualification to come in Division-I, they ought to have been allotted to the said cadre, thus observed the Honble Supreme Court. Even this aspect of the case, in our view, would have no connection whatsoever with the facts of the case in hand.
12. In so far as the case of State of Gujarat and another v. Raman Lal Keshav Lal Soni and others (supra) is concerned, the facts whereof would reveal that the Gujarat Panchayat Act, which came into being in 1961, aimed at democratic decentralization of important governmental functions by vesting such functions in Gram, Nagar, Taluka and District Panchayats and by enabling the State Government to transfer other powers, functions and duties to the Panchayat Institutions. As a result of introduction of the Act, the District Local Boards under the Bombay Local Boards Act stood transformed as District Panchayats, Village Panchayats under the Bombay Village Panchayats Act as Gram Panchayats and Municipalities under the Bombay District Municipal Act and Bombay Municipal Borough Act as Gram or Nagar Panchayats, depending on the population, the officers and servants in the employ of the District Local Boards, Old Village Panchayats and Municipalities were deemed to be transferred to the service of the District Panchayat, new Gram Panchayats and interim Panchayats respectively and allocated to Panchayat service. A single centralized Panchayat service was constituted which was to be distinct from the State service. The Panchayat service consisted of District cadre, Taluka cadre and Local cadre. The Taluka and District Development Officers were officers of the State Government. Although benefits relating to equation of posts, promotions, fixation of pay scales and revision thereof were extended to the district and taluka cadres, the State Government did not make any order in that regard for the staff in the local cadre. Being aggrieved, certain ex-municipal employees, who were included in the local cadre, filed a writ petition in the High Court, which was allowed holding that the members of the Panchayat service belonging to the local cadre were government servants and issued consequential directions for equation of posts, revision of pay scales and payment of salaries. Against that judgment, an appeal came to be filed before the Honble Supreme Court, but during the pendency of the appeal, the Gujarat Panchayat(Third Amendment) Act,1978 was enforced with a view to nullify the basis of the decision of the High Court. The ex-municipal employees included in the local cadre thereupon also filed the writ petitions before the Supreme Court challenging the constitutional validity of the Amending Act. The facts of the case further reveal that the duties which the members of the Gujarat Panchayat service were required to perform were in connection with those affairs of the State which were entrusted to the Panchayat Institutions, by the statute itself or by transfer by the Government under the statute. The salary and allowances of the servants and officers of the Panchayat service were paid out of funds contributed or lent by the Government or raised by the discharge of an essential governmental function. The mode of recruitment, whether by examination or otherwise, the powers in respect of appointments, transfers and promotions of officers and servants and disciplinary action which may be taken against them, were to be regulated by the Rules made by the Government. The provisions regarding allocation to the Panchayat Service from a State service and reallocation from Panchayat service to the State service under various sections were consistent with the Panchayat service also being a service under the State. The provisions further revealed that the servants were not of the individual Panchayat but belonged to a centralized service. Panchayat service is one singe service with the State as the master. By the Amending Act of 1978, Secretaries, officers and servants of Gram and Nagar Panchayats, who were allocated to the Panchayat service from the ranks of the ex-municipal employers, were sought to be meted out differential treatment from the other members of the Panchayat service, more particularly the Secretaries, officers and servants of Gram and Nagar Panchayats, who were drawn from the rank of Secretaries, officers and servants of old Village Panchayat, that is the Talatis and Kotwals, who were government servants. They were deprived of their status as members of a service under the State without giving any option. Retrospectivity was sought to be given to the Amending Act so as to nullify their claims as government servants. The amendments necessitated to get over the judgment of the Gujarat High Court that the Panchayat service is a State service. The status of government servants achieved by the ex-municipal employees, who had been allocated to the Panchayat service, it was held by the Supreme Court on the facts as mentioned above, could not be extinguished by the Amending Act, so long as the posts were not abolished and their services were not terminated in accordance with the provision of Article 311 of Constitution of India. Nor was it permissible to single them out for differential treatment in violation of Article 14.
13. From the summary of the provisions of Amending Act, it was held that it required no perception to recognize the principal target of the amending legislation as the category of ex-municipal employees, who were to be pushed out of the panchayat service and were to be denied the status of government servants, and the consequential benefits. The pertinent reliance of the applicant is on the observations of the Honble Supreme Court in paragraph no.50, which reads thus:-
50. It is here necessary to recapitulate a few facts. When the panchayat service was initially constituted soon after the passing of the Gujarat Panchayats Act, there were three cadres, the district cadre, the taluqa cadre and the local cadre. Secretaries, Officers and servants of the old Village Panchayats under the Bombay Village Panchayats Act, 1958 became Secretaries, officers and servants of the new Gram Panchayats under section 325 (2) (x) of the Gujarat Panchayat Act, 1961. Talatis and Kotwals, who were government servants, were Secretaries and officers of the old Village Panchayats under the Bombay Village Panchayats Act and so they became Secretaries and Officers of the new Gram Panchayats under the Gujarat Panchayats Act, 1961. Some municipalities constituted for municipal districts and municipal boroughs under the Bombay District Municipal Act and the Bombay Municipal Boroughs Act as applied to areas in the State of Gujarat, were converted into Gram and Nagar Panchayats under Section 307 of the Gujarat Panchayats Act and all officers and servants in the employ of such municipalities became officers and servants of interim panchayats and allocated to the panchayat service. Thus, Secretaries and officers of dissolved municipalities also became Secretaries and Officers of Gram and Nagar Panchayats. District Local Boards constituted under the Bombay Local Boards Act stood dissolved on the passing of the Gujarat Panchayats Act and all Officers and servants in the employment of the Board were deemed to be transferred to the service of the successor District Panchayat under Section 326 of the Gujarat Panchayats Act. Also allocated to the panchayat service were those government servants who were transferred to the panchayats under Section 157 and such other officers and servants employed in the State service as were necessary [Section 206 (iii)]. All these Secretaries, Officers and servants became members of a service under the State as soon as they were allocated the Panchayat service. Now, by the Amending Act, Secretaries, Officers and servants of Gram and Nagar Panchayats who were allocated to the panchayat service from the ranks of the ex-municipal employees are sought to be meted out differential treatment from the other members of the panchayat service, more particularly the Secretaries, Officers and servants of Gram and Nagar Panchayats who were drawn from the ranks of Secretaries, Officers and servants of old Village Panchayats, that is the Talatis and Kotwals. Their status as members of a service under the State is to go with no option to them. Retrospectivity is sought to be given to the Amending Act so that they could not claim that they were ever government servants and so could not be made to cease to be government servants and so that they could not claim that they were singled out for differential treatment, for, if they were never in the panchayat service, they could not complain of being taken out of the panchayat service.
14. What appears from the observations/findings of the Honble Supreme Court, as extracted above, is that all the Secretaries, officers and servants of municipalities etc. became members of a service under the State as soon as they were allocated the Panchayat service. By the Amending Act, Secretaries, Officers and servants of Gram and Nagar Panchayats who were allocated to the panchayat service from the ranks of the ex-municipal employees were sought to be meted out differential treatment from the other members of the panchayat service, more particularly the Secretaries, Officers and servants of Gram and Nagar Panchayats who were drawn from the ranks of Secretaries, officers and servants of old Village Panchayats, that is Talatis and Kotwals. Their status as members of a service under the State was to go with no option to them. It is in these circumstances that it was held that option was required.
15. Present is not a case where, on de-merger, the status of the applicant is to change as was in the case aforesaid where the employees of municipalities etc. were to loose the status of government servants being enjoyed by them for a long time, which was sought to be taken away by the Amending Act. The applicant does not seem to have suffered any of his service benefits, be it the status, salary or anything alike. The applicant, on de-merger, has come back to his original cadre i.e. Government Advocates Cadre, as he was before merger with same status and emoluments as he would be getting when the cadres were merged. It is not the case of the applicant that de-merger has brought him down in the status or in emoluments or in any of his conditions of service to his disadvantage in any manner, whatsoever.
16. We do not find any cogent reason to declare the applicant senior to one Dr. Geeta Rawat, who belongs to a different cadre, particularly when she is not even a party respondent in the present Original Application.
17. Finding no merits in this Original Application, the same is dismissed leaving, however, the parties to bear their own costs.
(Dr. R.C. Panda) (V.K. Bali) Member (A) Chairman /naresh/