Gujarat High Court
State Of Gujarat vs T.J. Patel on 19 December, 1991
Equivalent citations: (1992)1GLR567
Author: C.K. Thakker
Bench: C.K. Thakker
JUDGMENT C.K. Thakker, J.
1. This group of 102 petitions is filed by the State of Gujarat against orders passed by the Gujarat Civil Services Tribunal in Appeal Nos. 439 of 1982 and others on October 13, 1983 and also against an order passed in Review Application No. 7 of 1984, on May 31, 1984.
2. To appreciate the controversy in question, few facts may now be stated.
The respondent in each petition was selected by the Gujarat Public Service Commission (GPSC for short) for the post of Clerk in Secretariat Department and other offices at Ahmedabad. The Recruitment Rules for the purpose of appointment to the post of Clerks in Lower Division of Subordinate Secretariat Service have been framed under the proviso to Article 309 of the Constitution of India on June 14, 1966. The relevant rules are Rules 1 and 2 and they read as under:
(1) The appointment shall be made either.
(a) by direct selection on the result of the Competitive Examination held by Gujarat Public Service Commission;
OR
(b) by promotion of members of Class-lV service of proved merit and efficiency.
(2) To be eligible for appointment by direct selection the candidates must.
(a) have attained the age of 18 years and not have attained the age of 25 years on the first day of the month, immediately following the month in which a period of ninety days from the date of the first publication of the notification or the advertisement for the post by Commission expires,
(b) have passed the S.S.C. Examination or an examination recognised by Government as equivalent to it, and
(c) the candidate appointed by direct selection, shall be required to undergo such training and to pass such departmental examination as are prescribed by Government from time to time according to the procedure prescribed in an Annexure to these rules, before he is appointed to the regular post of Clerk.
Reading the above rules, it becomes clear that an appointment to the post of Clerk can he made by direct selection on the basis of the result of the competitive examination held by the GPSC and, to be eligible for appointment by direct selection, the candidate must undergo training and must pass departmental examination as prescribed by the Government from time to time in accordance with the rules. The case of the State-Government is that the statutory scheme for filling posts of directly recruited clerks has been prepared and as per that scheme, the candidates who have been selected by the GPSC and recommended for the appointment as Clerks will have to be sent for training for a period of two months (1-1/2 month for theoretical training and 1/2 month for practical training). After the period of training is over, all the candidates will be required to pass departmental examination and only after the training is over and the candidate successfully passes the examination, he can be appointed as a regular clerk. The statutory scheme also provides that the selected candidate will be appointed to a supernumerary post of Clerk in a Secretariate Department and he shall have to undergo training and pass the examination in accordance with the training scheme and his recruitment will be subject to the terms and conditions specified in it. He will be continued against supernumerary post till his appointment to a regular post which will be made after he has received prescribed training and passed the examination in accordance with the training scheme. In case of his failure in examination at first attempt, he will be required to proceed on leave without pay and appear in the subsequent examination. He will be required to remain on leave without pay till he has passed that examination. If a supernumerary clerk does not appear in the examination after completion of the training, he may be required to proceed on leave without pay till such time as he passes the post-training examination and qualifies himself for the appointment to a regular post. A bond is required to be executed by the candidate. The scheme for the post-entry training of directly recruited clerks provides for payment of the fixed amount without any allowance to supernumerary clerks. Clause (ii) states that a supernumerary clerk 'will start getting full pay and allowances of a clerk only after he has been appointed to regular post of clerk'. (emphasis supplied) Clause (v) is relevant and it reads as under:
(v) An examination will be held after the training period is over and Supernumerary Clerks who have completed the training programme will be required to pass this examination. Interval between the completion of the training period and commencement of this examination will not be more than 15 days. During this period Supernumerary Clerks will be required to work in different departments of Secretariate or other offices. If, however a Supernumerary Clerk wishes to take leave during this period he may be granted leave without pay.
Looking to Clause (v), it clearly appears that during the period before a candidate is appointed as a regular clerk after declaration of the result, he will be required to work in different departments of the Secretariate or other offices and if a supernumerary clerk wishes to take leave during the said period, such leave may be granted without pay. Clause (ix) is also material which reads as under:
(ix) A Supernumerary Clerk will be appointed to a regular post of Clerk in a Secretariate Department or in an office of Head of Department after he has passed the post-training examination. He will continue to work as a supernumerary hand during the period between the completion of the examination and declaration of the result of the examination. He will be appointed in a regular post immediately after the declaration of the result if he passes in the examination. In the event of failure in the examination in this first attempt, he will be required to proceed on leave without pay, and to appear in the subsequent examination. He will be required to remain on leave without pay till he has passed the prescribed post training examination. He will be appointed to a regular post only after he has passed this examination.
(Emphasis supplied) Clause (xi) provides for seniority and it enacts that a supernumerary Clerk who passes the post-training examination earlier will become senior to those who pass it later. Inter-se seniority of those who pass the said examination on the same day will be determined according to their rank in the competitive examination held by the GPSC.
3. More than 100 employees of the State Government approached the Gujarat Civil Services Tribunal by filing appeals for various reliefs inter alia contending that after they were selected by the GPSC for the posts of Clerks in Secretariate Department and other offices at Ahmedabad, they were required to take training and after passing the post-training examination they were required to be appointed as regular clerks in the Departments of the Secretariate and other offices. Ordinarily, after the selection by the GPSC, such Candidates were to be given training and only after the post-training examination and declaration of the result of the said examination, they were to be appointed as Clerks. However, in view of the administrative exigencies at the relevant point of time the General Administration Department (GAD for short), decided to appoint them as untrained temporary Clerks and before they were given training and before they could clear the examination, they were appointed as supernumerary Clerks. During the period of training and upto the date of the result of the examination, the candidates were to be paid a fixed amount of Rs. 250/- by way of stipend in view of the fact that they were not to be appointed to the post of Clerk. But if a regular appointment is made to the post of Clerk, such candidate would be entitled to get regular pay scales. It was the case of the appellants before the Tribunal that in view of the fact that the GAD wanted services of the appellants even prior to sending them for training and declaration of the result of departmental examination, they were appointed as supernumerary clerks and they were paid salary for the said period. In due course, they were sent for training for a period of two months (1 1/2 month for the theoretical training and for 1/2 month practical training), they appeared for the post-training examination and all of them had successfully cleared the said examination. However, during the period of training of two months as well as till the result of the examination was declared the appellants were paid only Rs. 250/- per month by way of stipend. The said action was clearly illegal, ultra vires and unconstitutional and was required to be interfered with. It was also submitted by the appellants before the Tribunal that since they were appointed as supernumerary Clerks after they had cleared the GPSC before the training as well as post-training examination, their seniority was required to be considered in the light of the original appointment as supernumerary Clerks and the action of the respondent-State Government in ignoring their seniority till they came to be regularly appointed for the first time after the declaration of the result was also contrary to law.
4. It was the case of the State Government, on the other hand, that all the appellants were not entitled to regular pay scale and salary during the period of training and till the declaration of the result of the post-training examination, since no regular appointment could be made of the appellants to the post of Clerk during that period. They were entitled to salary and to claim seniority only from the date of their appointment to the post of clerk. According to the State Government the said benefits had been extended in favour of the appellants and, therefore, they could not have any grievance against such an action. It was also contended on behalf of the authorities that in view of the administrative exigencies, the appellants and other persons could not be sent for training but even prior to the training and post-training examination, since they were selected by the GPSC, the Government thought it fit to appoint them as supernumerary clerks and they were as such appointed as supernumerary clerks. It is undisputed fact that for that period even the salary has also been paid to all the appellants. It was the contention of the Government authorities that as per the statutory rules and the statutory scheme, the appellants could not claim the benefits of the regular pay scales during the period of training till declaration of the result of the post-training examination and accordingly, the said benefit had not been extended in favour of the appellants. It was not extended in favour of any other clerk also. The State also contended that the Tribunal had no jurisdiction to entertain, deal with and decide the appeals filed by the appellants. Therefore, the questions before the Tribunal were whether it had jurisdiction to entertain appeals and whether the appellants were entitled to claim regular pay scales during training period and post-training period till the result of the examination was declared or they were entitled to such pay scales only from the date of their regular appointment.
5. After hearing the parties, the Tribunal came to the conclusion that the contention of the State Government regarding jurisdiction of the Tribunal was not well founded. The Tribunal held that even prior to sending the appellants for training the appellants came to be appointed as untrained clerks and were paid salary and therefore, they could be said to be "specified civil servants" within the meaning of Section 2(a) of the Act and the Tribunal had jurisdiction to entertain the dispute between the appellants and the State Government. Accordingly, the preliminary contention was negatived.
6. Regarding the merits of the matter, the Tribunal held that for a period of two months for which the appellants were sent for training, they had not worked and, thus were not entitled to claim salary for the said period. However, after the training was over and they were reverted to Secretariate and other Departments, they had worked and, therefore, they were entitled to salary on the same principle on which salary was paid to them before they were sent for training. Therefore, according to the Tribunal the appellants were entitled to salary after the period of training and before the declaration of the result during which the appellants had worked. The Tribunal, therefore, directed the State Government to pay salary for the intervening period after training and before declaration of the result. Regarding seniority, the Tribunal came to the conclusion that the jurisdiction of the Tribunal was statutory and looking to the Schedule of the Act, seniority was not one of the matters in respect of which the jurisdiction had been conferred on the Tribunal and, therefore, the Tribunal had no jurisdiction to decide that question. The Tribunal, however, observed that the claim of the appellants regarding seniority was well founded. The above judgment was pronounced by the Tribunal on October 13, 1983. It appears that the Government filed Review Application No. 7 of 1984 raising a number of contentions and grounds, but the Review Application came to be dismissed by the Tribunal on May 31, 1984. So far as non-payment of salary for a period of two months (training period) the appellants have not preferred any petition and the order of the Tribunal has become final.
7. The order pissed by the Tribunal in 102 appeals on October 13, 1983 and the rejection of the review application hive been challenged by the State Government by filing the present petitions.
8. Mr. D.K. Trivedi, the learned Government Pleader mainly raised three contentions.
(1) The Tribunal has committed an error of law apparent on the face of the record in coming to the conclusion that the Tribunal had jurisdiction to entertain, deal with and decide the question in controversy. But the appellants could not be said to be "specified civil servants" and, therefore, the Tribunal had no jurisdiction to entertain the appeals filed by them and the impugned order requires to be quashed and set aside.
(2) The Tribunal has also committed an error of law apparent on the face of the record in not properly construing the statutory rules and the scheme appended thereto and by directing the State Government to pay to the appellants salary for the post-training period till the declaration of results. The said order was contrary to the statutory rules and could not have been passed.
(3) The observations of the Tribunal regarding seniority of the appellants are also contrary to the relevant statutory rules and scheme and those observations could not have been made by the Tribunal.
9. Mr. S. Tripathi, the learned Counsel for the some of the respondents has supported the order passed by the Tribunal. He submitted that the Tribunal has decided all the matters in accordance with law and that no any other view could be taken. He further submitted that even if it is assumed for the sake of argument without admitting it that two views were possible and the Tribunal has taken one view, it cannot be said that there is an error apparent on the face of the record committed by the Tribunal which requires to be corrected or interfered with in the exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. He also submitted that even on the basis of the doctrine of 'equal pay for equal work', the appellants were entitled to salary at least for the period after training till they came to be regularly appointed since it is an admitted fact that all the appellants had worked during that period. He finally submitted that if the statutory rules and the scheme is to be considered in the manner in which it is sought to be interpreted by the learned Government Pleader, it would be arbitrary and violative of Articles 14 and 16 of the Constitution of India.
10. Having given anxious consideration to the questions involved in the present petitions, I am of the opinion that the petitions are required to be allowed. So far as preliminary objection regarding jurisdiction is concerned, in my view, the contention of the learned Government Pleader is not well founded and the Tribunal is right in holding that it had jurisdiction to decide the dispute. Section 2(h) defines 'specified civil servants' and it states that the specified civil servants means persons who are or who have been members of the civil services of the State of Gujarat or of the Panchayat Service but does not include persons who are or who have been Police Officers. Section 10(2) confers jurisdiction on the Tribunal to hear and decide the dispute between the Employer and Employee as defined as specified civil servant in Section 2(h). Even if the appellants came to be appointed as untrained clerks on ad-hoc, temporary or on any other basis, it is not possible to contend that they were not 'specified civil servants' so as to invoke jurisdiction of the Tribunal. It is an admitted fact that before the appellants were sent for training, they were paid salary also. In these circumstances, the appellants could have raised the dispute before the Tribunal and the Tribunal was right in holding that it had jurisdiction to deal with the matter.
11. So far as the merits are concerned, it, however, appears to me that the learned Government Pleader is right in contending that the Tribunal has committed an error of law apparent on the face of the record in interpreting the statutory rules framed under the proviso to Article 309 of the Constitution of India and the scheme appended thereto. Looking to the rules, alongwith the scheme amended from time to time, it clearly appears that an appointment to the post of clerk can only be made of a candidate who has cleared the GPSC, has undergone training for a period of two months (1-1/2 month for theoretical training and 1/2 month for practical training) and has passed the post-training examination. Ordinarily, he cannot get even ad-hoc appointment with the State Government unless all the three conditions are satisfied; namely (i) clearance of the GPSC, (ii) completion of the training and (iii) passing of the post-training examination. It is the case of the State that in past all appointments were made on the above basis. It is also the case of the State that during the period of training and the declaration of the post-training examination, the GPSC selectee is not entitled to pay scale or salary but he is entitled to an amount of Rs. 250/- by way of stipend. A candidate would be entitled to get salary only when he is 'regularly appointed after declaration of the result'. In the instant case, in view of the administrative exigencies, prior to training and examination, the appellants came to be appointed as untrained clerks since they were selected by the GPSC. According to the learned Government Pleader, the appellants had no right to get appointment and the Government could have appointed persons other than the appellants or the GPSC selected candidates by resorting to other modes, such as Employment Exchange. The Government, however, considered that since regular appointments could be made only through the GPSC, it would be proper to appoint the appellants and that is how they came to be appointed even prior to training and examination. He submitted that it was expected of the Government that when those persons were appointed, they should be paid salary for that period and the appellants were paid salary in accordance with law. This, however, does not mean, Mr. Trivedi contended that the appellants were entitled to seniority or that they must be paid salary for the period of training and till result of the examination was declared ignoring the statutory rules and the scheme. In past also, candidates were not paid regular salary and their seniority was not taken into consideration for the purpose of length of service since the appointment could be made only after the declaration of the result. He submitted that the Tribunal was not right in holding that the order dt. November 20, 1980 was virtually an order of regular appointment and the expression 'stipend' was loosely used as observed by the Tribunal. He submitted that the Tribunal was also not right in giving undue importance to the fact that the appointment was made on temporary basis "till the period of temporary post is expired or for want of post" and not during the period of training and declaration of the result. He submitted that such an expression was used in the order issued by the GAD inasmuch as a number of persons were required to be allotted to different departments by GAD. The GAD has also specifically mentioned the GPSC rank of the candidate concerned in the order. Thus, according to Mr. Trivedi, the appellants were informed that they would be paid stipend as supernumerary clerks and that their services would not be taken into consideration for the purpose of seniority.
12. Now, it is not disputed before me that for the period during which the respondents have worked either in the Secretariate or in other Government Departments before they were sent for training, salary has been paid to them. It is also not disputed that after the period of training and the declaration of result, the appellants came to be regularly appointed and since then they have been paid pay scales regularly. Looking to the statutory rules and the scheme, in my opinion, the respondents are not entitled to get regular pay scales during the training period and for post-training period till the declaration of result of post-training examination in view of the provisions of the Rules and the Tribunal has committed an error apparent on the face of the record in construing the ambit and scope of the rules and schemes which requires to be corrected in the exercise of the powers under Article 227 of the Constitution of India.
13. In my opinion, the Tribunal has committed an error apparent on the face of the record in not properly considering and applying statutory Rules and the scheme appended thereto. Looking to the Rules and the scheme it becomes clear that the training is pre-service training and not in-service training. After the candidate is selected by the GPSC, he has to undergo training for a period of two months (1-1/2 months for theoretical training and 1/2 month for practical training) and thereafter has to appear in post-training examination and only after he gets through that examination, he can be appointed to the post of clerk on temporary basis. In past, that course was followed by the authorities. Because of the administrative exigencies, however, in the instant case, before the training as well as post-training examination, a number of candidates came to be appointed and they were paid salary also. They were entitled to salary and they were paid salary during the period they had actually worked prior to they were sent for training. But as per the statutory Rules and scheme, all those candidates were entitled to stipend of Rs. 250/- per month for the period of training as well as post-training examination till they were declared successful in the examination. They arc not entitled to pay scales for that period. Even in the past, similarly situated candidates were not paid salary and there is no question of violation of Article 14 or 16 of the Constitution as contended by the respondents. The Tribunal, in my opinion has given undue importance and unnecessary emphasis on wordings of order dt. November 28, 1980 and subsequent orders. It is not disputed that original allotment was made by the GAD to various departments and thereafter the appointments were to be made in pursuance of the order passed by the GAD. Therefore, the Tribunal was not right in observing that when they came to be appointed by various departments, the word 'untrained' was omitted. The source of appointment was the order issued by the GAD and the said order in no uncertain terms provided that the candidate was appointed as an untrained clerk for a short period on temporary basis; that his appointment was not to be treated as regular and not be considered for the purpose of seniority; that before a regular appointment was to be given as per the scheme he was required to take training and as supernumerary clerk, he was entitled to stipend only. In my opinion, the Tribunal was not right in holding that the expression 'stipend' was loosely used. According to me, the Government was conscious of the distinction between the two expressions, 'stipend' and 'salary' and that as per the Rules and scheme before regular appointment, all the candidates were entitled only to stipend of Rs. 250/- per month and not to regular pay scale of clerks. The Tribunal has also committed an error of law apparent on the face of the record in recording two contradictory findings On one hand, the Tribunal upholding the contention of the State Government, rejected the claim of the employees holding that during the period of training of two months the candidates were entitled to Rs. 250/- per month as 'stipend', while on the other hand, it held that after the training was over, the candidates were entitled to regular pay scale of Clerks. This is just contrary to the underlying object of the Rules and the scheme. The scheme ought to have been read as a whole and reading as a whole, there does not appear to be any doubt in my mind that all the candidates who were selected by the GPSC were required to be sent for training for a period of two months and were required to appear for the post-training examination and the appointment can be made only after the result of the examination. There is enough material also from which it can be said that the Tribunal has not properly appreciated and interpreted the scheme. As per the scheme, the seniority is to be counted from the date of the regular appointment after a candidate has passed the examination. It may happen that a candidate might have completed training period and appeared in the post-training examination, but failed in the examination. Obviously he will not be appointed as Clerk on regular basis and his seniority cannot be counted from the date of the training or declaration of the result of the examination. He will have to appear once again in the examination and if he gets through in the said examination, he will be appointed thereafter and his seniority will be counted from the date of appointment. All those persons who appeared alongwith him at the first trial and declared successful will be senior to him. Even in the second batch, as per the scheme, if the new candidates who have taken training ranked higher, they will also be treated as senior to him. Therefore, looking to the scheme in its entirity, there is no manner of doubt that a candidate cannot be said to be regularly appointed unless he undergoes a training and clears the post-training examination. It is also clear that during the entire period of training of two months and post-training examination till the declaration of the result the candidate is entitled to stipend of Rs. 250/- per month and not regular pay scale of a clerk. The Tribunal is also not right in holding that the appointment of the appellants was made till further orders because the period of training was not certain. This is just contrary to the statutory scheme. The scheme specifically provided the period of two months training (1 1/2 month for theoretical training and 1/2 month for practical training). As observed by me earlier, the appointment order came to be issued by using the above expression not because the period of training was not certain or post-training examination was not necessary but because of the fact that original appointments were made by the GAD and those persons were allotted to various departments. It was, therefore, necessary to mention in the order that even during the period of training and/or post-training examination, an action could be taken. According to me, the Tribunal was not right in observing that the training was 'in-service training' and the appellants were entitled to regular pay scale after the training was over and before the appellants came to be regularly appointed. In view of the above position, it is not necessary to pass formal order of discharge as considered essential by the Tribunal. The appellants could be said to be appointed for the first time after they had completed training and cleared the post-training examination.
14. In my opinion the doctrine of "equal pay for equal work" cannot be pressed into service by the appellants. Looking to the statutory rules and the scheme, the appellants became the employees of the State Government after they had undergone training and successfully cleared the post-training examination. During that entire period, as per the rules, they were entitled to stipend. That expression was advisedly used by the rule making authority. It is not disputed that as soon as they were regularly appointed, they were paid regular pay scales and, therefore, the doctrine of "equal pay for equal work" cannot apply and the said contention is also rejected.
15. In the result, the ordes passed by the Gujarat Civil Services Tribunal in all the appeals are hereby quashed and set aside and all 102 appeals filed by the appellants are ordered to be dismissed by holding that none of them was entitled to regular pay scales either during the period of training of two months or during the period of post-training service, but they were entitled to regular pay scales only after completion of training and successfully clearance of the post-training examination.
16. Their seniority would be counted from the date of their regular appointment. Rule is accordingly made absolute with no order as to costs.