Gujarat High Court
S.S. Thakore And Anr. vs State Of Gujarat And Ors. on 2 April, 1991
Equivalent citations: (1992)1GLR68
Author: G.N. Ray
Bench: G.N. Ray
JUDGMENT R.K. Abichandani, J.
1. The Appellants, who were original-respondents Nos. 3 and 5, seek to challenge the order passed in Special Civil Application No. 101 of 1978 on 10/11-4-1979, partly allowing the petition directing the concerned authorities to determine the seniority of the writ petitioners in light of the principles contained in the Government Circular dated 18th April, 1978 and in light of the observations made in the Judgment.
2. The writ petitioners (Respondents Nos. 3 to 33 in Letters Patent Appeal No. 155 of 1979) were appointed in the Office of the Director Civil Supplies (Accounts) as Clerks. A dispute had earlier arisen in Special Civil Application No. 767 of 1974 before this Court since the petitioners who were recruited by the Director of Civil Supplies (Accounts) were being treated as irregular recruits as they were not appointed either through the Gujarat Public Service Commission or under the Centralised Recruitment Scheme. In that Special Civil Application No. 767 of 1974 which was decided on February 28, 1975, this Court had taken a view that the Centralised Recruitment Scheme was not applicable when those writ petitioners were appointed in the Directorate of Civil Supplies (Accounts) or in the Office of the Deputy Director of Civil Supplies (Accounts) and that their posts were not within the purview of the Gujarat Public Service Commission until March 1, 1969. It was held that the appointments of those writ petitioners were regular and were not therefore required to be regularised under Rule 29 of the Gujarat Non-Secretariate Clerks, Clerk-Typists and Typists (Direct Recruitment Procedure) Rules, 1970. The Supreme Court upheld the decision of the High Court that those writ petitioners were not irregular recruits and found that the State Government had erred in thinking that their initial appointments were irregular and had to be regularised in accordance with the provisions of Rule 29 of the said Rules (P.C. Patel and Ors. v. T.H. Pathak and Ors. AIR 1970 SC 101. As regards seniority, the Supreme Court observed that it was advisable for the State Government to re-examine the whole matter and to take appropriate action to give effect to their intention of ameliorating the lot of those writ petitioners and directed that the State Government may examine the question of fixing their seniority and to take action to ameliorate their lot as temporary employees. Thus, the question of the fixation of seniority of those writ petitioners (which included some of the present writ petitioners) vis-a-vis, the respondents Nos. 3 to 7 (in the Special Civil Application No. 101 of 1978) who were selected through the G.P.S.C. and other departments and initially recruited in other departments, was kept wide open. Thereafter, by their Circular dated 17th October, 1977, the Directorate of Civil Supplies (Accounts) published a seniority list of Clerks, Clerk-Typists and Typists as on 1-1-1977. As per the said Circular, it was decided that the seniority of Clerks, Clerk-Typists and Typists appointed prior to 1st March, 1969 in the Directorate of Civil Supplies (Accounts) should be determined from the date of their appointment to the cadre Irrespective of the fact whether they were appointed through the Employment Exchange or by direct selection from open market. It was further decided that in case of Public Service Commission candidates, their seniority Was to be determined from the date of their appointment as P.S.C. Candidates as per existing instructions. It was however clarified in paragraph 6(1) that the seniority of the P.S.C. selected candidates had been finalised according to the Government orders dated 13-6-1977 pending final decision of the Government on the various representations received against those Government orders. Since these original respondents Nos. 3 to 7 were admittedly appointed in the Directorate of Civil Supplies (Accounts) after the appointment of the writ petitioners, they felt aggrieved against these original respondents Nos. 3 to 7 having been shown senior to them on the basis of the dates of their original appointment in other departments from where they were ultimately declared to be surplus, and therefore were accommodated in the Directorate of Civil Supplies (Accounts). The learned single Judge found that, as these original respondents Nos. 3 to 7, who had been appointed in other departments which were within the purview of the Public Service Commission were declared surplus, their services were liable to be terminated as they were only temporary Government servants. However instead of terminating their services they were re-allocated to the Directorate of Civil Supplies (Accounts) to which the writ petitioners belonged for appointing them in the said Directorate. They were accordingly appointed in the Directorate of Civil Supplies (Accounts) in 1970-71. The learned single Judge rejected the contention of the original respondents Nos. 3 to 7 that though they were appointed in the Directorate of Civil Supplies (Accounts) in 1970-71, on being declared surplus in other departments, their seniority in this Directorate must relate back to the date of their initial appointment in the other departments where they were declared surplus. The learned single Judge, having regard to Clause 6(1) of the impugned Circular dated 17th October, 1977, found that since the fixation of seniority of the P.S.C. candidates was done pending final decision of the Government on various representations received against the Government orders pertaining to seniority of P.S.C. candidates, the Government was seized of the matter of resolving the question of fixation of seniority on a principle and in the wake of the said Circular dated 17th October 1977, this question was resolved by the Government by taking a policy decision by Circular dated April 18, 1978 which adopted a rational and fair principle of seniority and the principle of seniority so formulated applied to all outstanding disputes pertaining to such employees whose seniority required to be determined in accordance with the same principle irrespective of whether they were declared surplus and absorbed in the post or whether such action arose after the issuance of the Circular dated 18th April, 1978.
3. Two of the original respondents Nos. 3 to 7 being respondents Nos. 3 and 5, have challenged the said decision of the learned single Judge in Letters Patent Appeal No. 155 of 1979 and the State of Gujarat has also challenged the same in Letters Patent Appeal No. 38 of 1980. At the hearing of these appeals, it was contended by the learned Counsel Mr. S.N. Shelat appearing for the appellants in Letters Patent Appeal No. 155 of 1979 that the Circular dated 18th April 1978, which was sought to be used against the appellants for fixation of their seniority below all the employees who were already working in that Directorate when they were appointed after being declared surplus from the other departments, could not have been made applicable to the appellants since it was not in existence at the time when they were appointed in the Directorate of Civil Supplies (Accounts), Mr. Shelat further contended that in view of the Government Circular dated 23rd December, 1977, which was issued in context of Rule 21(3) of the said Rules, the seniority of the employees which is fixed from the date of passing the post training examination or the date of regular appointment whichever is later is protected in the event of re-allotment of the candidates from one office to other office on administrative grounds. It was contended that merely because the original respondents Nos. 3 to 7 were transferred to or posted in another office their seniority cannot be disturbed and should have been kept intact. Reliance was placed in support of this contention on the decision of this Court in Special Civil Application No. 1138 of 1979 and 3136 of 1981 decided on 24th June, 1986 and the decision in Letters Patent Appeal No. 348 of 1982 decided on February 6, 1991. The learned Counsel appearing for the State supported these contentions.
4. The Directorate of Civil Supplies (Accounts) was admittedly not within the purview of either the G.P.S.C. or the Centralised Recruitment Scheme upto 1st March, 1969. For the period between 1st March, 1969 and 16th April, 1970 this Directorate was within the purview of the G.P.S.C. but thereafter on coming into force of the Centralised Recruitment Scheme it was brought within the purview thereof with effect from 17th April, 1970. From the affidavit-in-reply filed on behalf of the Government on 2nd February, 1978, it appears that all the original respondents Nos. 3 to 7 were appointed in the office of the Directorate of Civil Supplies (Accounts) after 17th April, 1970. There is no dispute about the fact that all these original respondents were P.S.C. recruits who were initially appointed temporarily in other departments which were within the purview of the P.S.C. and that it is because they were declared surplus in those departments they came to be appointed in the Directorate of Civil Supplies (Accounts). Admittedly, the cadres of Clerks were depaitment-wise and there was no inter-se transferability of the Clerks recruited in one department to the other department. In exercise of powers under Article 309 of the Constitution of India, rules were framed for recruitment to the posts of clerks, clerk-typists, called 'The Gujarat Non-Secretariat Clerks and Clerk-Typists Recruitment Rules, 1970, which were applicable to offices other than those named in Sub-rule (2) of Rule 1 including departments of the Secretariat. As per Rule 2 of these recruitment rules appointment to the posts of clerks, clerk-typists was to be made either by direct selection according to the rules framed by the Government or by promotion from amongst the members of Class IV servants and members of constabulary in the Prohibition and Excise Department or proved merit and efficiency. These Recruitment Rules were in supercession of the existing recruitment rules. Under Rule 7 of the Recruitment Rules, it was provided that such candidates were required to undergo training and pass post-training examination before appointment to the post. These Recruitment Rules were framed on 17th April, 1970 and published in the Gazette on July 23, 1970 (Part 4. A. Guj. Government Gazette, Page 762). Simultaneously with these Rules, the Rules called 'The Gujarat Non-Secretariat Clerks, Clerk-Typists and Typists (Direct Recruitment Procedure) Rules, 1970 were also framed on 17th April, 1970 and published in the same Gazette at page 744. From Rule 7 of these Direct Recruitment Procedure Rules, it would appear that the recruitment of clerics, clerk-typists and typists in the offices situated in the Districts was to be district-wise and the recruitment in the offices mentioned in Appendix 'B' to the said Rule was to be for an office or a group of offices from amongst the offices mentioned in Appendix 'B" as the case may be. The office of the Director of Civil Supplies (Accounts) appears at Item No, 75 of Annexure 'B' to the said Rules. As regards the offices included in Annex. 'B' the Departmental Selection Committee was required to prepare the select list and forward it to the Convener of the Departmental Selection Committee. The Departmental Selection Committee as defined in Rule 2(c) means the Committee that shall be constituted by the administrative department concerned for selecting candidates for appointment to the posts of clerks and clerk-typists in each Head of department/Office or a group of offices of Heads of departments/Offices from amongst the offices mentioned in Appendix 'B'. From the select list so prepared for the concerned office candidates were to be called for training depending upon the requirements of filling in the actual vacancies as provided in Rule 20. The clerks and clerk-typists who passed the post-training examination were treated as senior to those who passed the post-training examination later as provided in Rule 21(1). Under Rule 22(1)(b), the Convener of Departmental Selection Committee was required to allocate, from amongst the candidates included in the departmental waiting list, to the office for which the Departmental Selection Committee was constituted according to the requirement indicated by such office and the authorities competent to appoint such persons were then to make appointments of such candidates. It is, thus, clear from the scheme of the said Rules that it is not as if the State-wise combined cadre of clerks was created. On the contrary, the cadres remained district-wise and department-wise and these Rules only indicated the procedure laying down the manner in which the recruitment was to be made and after such procedure is undergone, on receiving the names from the Convener, according to the requirements and in accordance with the order of preference in the departmental waiting list, appointments were to be made by the authorities competent to appoint such persons in the concerned departments. There is no indication in any of these Rules that, persons appointed in one department, which has its own cadre of clerks, could be transferred to any other department in normal course. It was therefore rightly not disputed at the time of the hearing that there was no inter-transferability of the clerks of the various departments and that the cadres were department-wise, directorate-wise and district-wise. There is also no dispute about the fact that each Directorate had its own avenue of promotion from its cadre of clerks. When one employee is placed in one department or its cadre the proper authority can post him wherever it is open to the authority to post such employee belonging to that cadre and take the very duty which is assigned to such employees. However, such transfer is limited to equivalent post in the same cadre and in the same department. As was observed by this Court in Bhagwatiprasad Gordhandas Bhatt v. State of Gujarat and Ors., (reported in (1977) XVIII GLR 562), deputation and transfer basically differ from each other, in that transfer can be only to an equivalent post in the same cadre and in the same department, while the deputation may be in any other department. Admittedly, the Directorate of Civil Supplies (Accounts) had its own cadre of clerks and the posts falling vacant in that cadre were not required to be filled in by bringing persons on transfer from any other department. There is no dispute about the fact that the original respondents Nos. 3 to 7 were not on deputation to this department. It is also clear that they were not brought on transfer and rightly so since they could not have been brought on transfer. Those employees, on being declared surplus in their respective departments, had no right under any Rule to be posted in the Directorate of Civil Supplies (Accounts) which was brought within the purview of the Centralised Recruitment Scheme on 17-4-1970. There original respondents were admittedly not recruited under the Centralised Recruitment Scheme. They were brought into the cadre of clerks in the Directorate of Civil Supplies (Accounts) only after the coming into force of the Centralised Recruitment Scheme which laid down the procedure for recruitment to the cadre of clerks inter alia in respect of offices named in Appendix 'B' including Directorate of Civil Supplies (Accounts) with effect from 17-4-1970. Since these original respondents Nos. 3 to 7 were P.S.C. candidates in other offices which were within the purview of the P.S.C., even if they were entitled to inter-se seniority amongst the P.S.C. candidates of the same group who were appointed in the offices within the purview of the P.S.C., they could not have claimed any right for being absorbed in the offices which were not within the purview of the P.S.C. at the time when they were declared surplus and were sought to be accommodated in the Directorate of Civil Supplies (Accounts). The decision of this Court, on which reliance was sought to be placed, in Special Civil Application Nos. 1138 of 1979 and 3136 of 1981 was in the context of Rule 21 of the said Rules which laid down the Centralised Recruitment Procedure and it will be noticed from the judgment that the Circular dated 23rd December, 1977 was issued by the General Administration Department of the Government in context of Rule 21(3) of the said Rules and it dealt with the subject of fixation of inter-se seniority of clerks, clerk-typists selected under the Centralised Recruitment Scheme. The seniority, which had to be reckoned from the date of passing the post-training examination or the date of regular appointment whichever was later, was to remain undisturbed in the event of re-allotment of a candidate from one office to other on administrative ground if there was no break in his service and if juniors in other offices were continued in service. In context of Rule 21 of the said Rules and the said Circular dated 23rd December, 1977, this Court held that the Sales Tax Department was in error in fixing the seniority of those petitioners on the basis of their actual appointment in the Sales Tax Department ignoring their earlier appointments in different Collectorates before their transfer/posting in the Sales Tax Department. The question of applicability of the provisions of Rule 21 of the said Rules or the Circular dated 13th December, 1977, which was issued in context of that rule, cannot arise so far as the original respondents Nos. 3 to 7 are concerned. Admittedly, they were never recruited under the Centralised Recruitment Scheme but they were recruited through the P.S.C. for the departments which were within the purview of the P.S.C. The decision in the Letters Patent Appeal No. 348 of 1983 also cannot help the appellants since in that case, the writ petitioners, who were recruited under the Centralised Recruitment Scheme and were absorbed on becoming surplus, were seeking repatriation to the Revenue Department to which they were originally allocated. The Division Bench, while dismissing the appeal, observed that instead of being sent home, they were re-allocated to other department after they were declared surplus. As regards the fixation of their seniority, since they were recruited under the Centralised Recruitment Scheme, it was held that their seniority was to be governed in view of Rule 21 by the date of passing of post training examination in the department in which they were transferred. In the instant case, no question of fixing of seniority of original respondents Nos. 3 to 7 in light of the provisions of Rule 21 of the said Rules and the Government Circular dated 23rd December, 1977, can arise because these respondents were not governed by that rule or the Circular. Moreover, in the present case, it cannot be said that the original respondents Nos. 3 to 7 were transferred for any administrative reasons from other departments to the Directorate of Civil Supplies (Accounts). If we turn to the orders by which they were placed in the Directorate of Civil Supplies (Accounts), it becomes clear that their appointments were being treated as fresh appointments and they were not sought to be transferred from some other departments to this Directorate. With the affidavit-in-reply dated 2nd February, 1978, the Government has produced certain orders reallocating these original respondents to the Directorate of Civil Supplies (Accounts). It will be noticed from one such order which is dated 9-9-1970 in respect of the original respondent No. 6 (Respondent No. 35 in this Appeal) that, Mr. Rathod was being placed in the Directorate of Civil Supplies (Accounts) against the short term vacancy as a temporary clerk. In paragraph 2 of that order it was mentioned that, on the expiry of the duration of the said post he will be relieved if there is no post available. On being so relieved he would given regular appointment only when a post becomes available. At the bottom of this order, while forwarding copy to the Directorate Civil Supplies (Accounts) it has been mentioned that Mr. Rathod be appointed as a Clerk and before the expiry of the duration of the temporary post of Clerk the G.A.D. may be informed. It also appears from the footnote that earlier order dated 18-6-1970 allocating the said candidate to the Finance Department was cancelled. In the same vein is the order dated 27-10-1970 which is also produced along with the said affidavit and which contains the names of the appellant No. 1 the original respondent No. 4 (Respondent No. 34 in this Appeal). In both these orders it was stated that if these candidates did not report for duty their names would be immediately removed from the wait list of selected candidates. A copy of a similar order dated 11-9-1970 in respect of T.H. Vankar is also produced along with the said affidavit. It appears that, after such re-allotment, the Director being the competent authority appointed them on temporary basis. One such appointment order is placed at Annexure 'E' with the Rejoinder affidavit of the original petitioner No. 3 Mr. M.L. Dave and that order dated 3rd November, 1970 is in respect of Mr. S.S. Thakore clearly indicates that he was appointed as a temporary clerk in the scale mentioned and was required to produce physical fitness certificate. It was indicated that the appointment was temporary and may be terminated at any time without notice. A copy of a similar order in respect of T.H. Vankar dated 17th September, 1970 was also produced with the said rejoinder affidavit. It would, thus, be clear from the manner in which these original respondent Nos. 3 to 7 were placed in the Directorate of Civil Supplies (Accounts) that, on being declared surplus in other departments, they were given fresh temporary appointments in the office of the Directorate of Civil Supplies (Accounts). If it was ever intended that they should carry their initial date of recruitment in the other departments as the date of seniority vis-a-vis the employees who constituted a separate cadre in the Directorate of Civil Supplies (Accounts), they would never have been given appointments as fresh recruits in the said department. In this context, we may also refer to the Circular dated 14th April, 1971 produced along with the affidavit filed on behalf of the Government on 2nd February, 1978. The said Circular dated 14th April, 1971 refers to the surplus P.S.C. candidates who were accommodated in other departments. Circulars dated 24th April, 1969 and 14th April, 1971 which were produced with the affidavits filed on behalf of the State Government have a bearing on the question of retention of surplus P.S.C. candidates. The Circular dated 24th April, 1969 which is referred to in paragraph 6 of the affidavit filed on 22nd October, 1978 on behalf of the State Government provided that the surplus P.S.C. candidates should be placed in the waiting list to be mentioned by the General Administration Department. It was directed that all the posts which fell vacant in the offices which were within the purview of the Public Service Commission including temporary posts or leave vacancies should be filled in from such surplus P.S.C. candidates who were placed in the waiting list. It was further directed to the Heads of the Secretarial departments that such of the clerks who had not completed continuous service of two years as on 31-12-1968 and were therefore liable to be terminated, should be terminated even if they were working in a leave vacancy or on ad-hoc basis and in their place appointments be made from the aforesaid waiting list maintained by the General Administration Department. The third direction given under the said Circular was to the Heads of departments, who were asked to immediately repatriate the employees who were brought to their office or offices within their control from other offices and to fill-in such posts from the aforesaid waiting list. The Circular dated 14th April, 1971 which also has a bearing on the question of placement of surplus P.S.C. candidates, records that by resolution dated 17-4-1970, the Government had brought the offices of Heads of departments except the Secretarial departments and its allied offices within the purview of the Centralised Recruitment Scheme and the recruitment under the new scheme was to be made in the offices of the Heads of departments by the Departmental Selection Committees. By the said Circular, it was decided that whenever the P.S.C. clerks/typists were likely to become surplus the necessary intimation should be sent to the Special Secretary, Revenue Department, atleast eight days in advance. The Special Secretary, Revenue Department was appointed as an authority to coordinate and regulate the recruitment under the new scheme. The said Special Secretary was required to prepare a list of such surplus clerks/typists. It was further decided in the said Circular that whenever requisition was received for recruitment under the new recruitment scheme, allocation should first be made from the said list of clerks/typists. It is only when the entire wait list gets exhausted, then the procedure laid down in the resolution dated 17th April, 1970 should be followed. From the aforesaid two Circulars it becomes abundantly clear that such of the P.S.C. surplus clerks/clerk-typists who were on the wait list earlier maintained by the General Administration Department and later by the Special Secretary, Revenue Department and who were to be accommodated in the offices which were not within the purview of the P.S.C., were to be appointed against fresh vacancies. This is clear from the fact that the Circular dated 14th April, 1971 refers to allocating clerk/typists from the surplus wait list only when requisition for recruitment under the new scheme is received. These P.S.C. surplus clerks/typists placed on the wait list were clearly to be treated as fresh appointees against the posts falling vacant in the offices which were not within the purview of the P.S.C. and to which they were to be allocated until the wait list was exhausted, before following the regular procedure under the Centralised Recruitment Scheme. In other words, the idea was to place them in lieu of fresh vacancies in the offices of Heads of Departments where vacancies have arisen and not to put them above those already serving in the cadre of clerks in such departments which were not within the purview of the P.S.C. Thus, from the Circulars as also from the nature of the orders of re-allocation and appointment of these original respondents Nos. 3 to 7, it is clear that they were to be treated as fresh appointees in the Directorate of Civil Supplies (Accounts) on being reallocated to it after they were declared surplus. No provision is pointed out to us in any scheme of recruitment applicable to the original respondents Nos. 3 to 7 which would have warranted their re-employment on being rendered surplus in this Directorate without loss of seniority. Therefore, the original respondents Nos. 3 to 7 had no right to claim seniority in the cadre of clerks in the Directorate of Civil Supplies (Accounts) in which they were accommodated on being declared surplus. It would appear from the Judgment of the learned single Judge that it was not even disputed that the original respondents Nos. 3 to 7 (including the appellants) Were rendered surplus and their services were liable to be terminated. It is clear that, instead of terminating their services, a compassionate view was taken to accommodate them in the Directorate of Civil Supplies (Accounts) by treating them as fresh appointees. Therefore, they could claim seniority in the cadre of clerks in this Directorate only from the date of their entry in that cadre on their fresh appointment being made in the said Directorate. As observed above, from Clause 6 of the impugned Circular dated 17th October, 1977, it is clear that the representations, which were received in connection with fixation of seniority of P.S.C. candidates, were under consideration of the Government and the seniority of such P.S.C. candidates, which was sought to be fixed under the said Circular, was subject to such decision which the Government was to take in respect of the representations. This culminated in the policy decision taken under the Circular dated 18th April, 1978 to which we may now advert. The said Circular issued by the General Administration Department of the Government has a bearing on fixation of seniority of the employees seeking transfer on their own request to different cadres of same department as also of those who were absorbed else where on being declared surplus. In paragraph 3 of the said Circular while considering the question of determining the seniority of the surplus employees who are absorbed else where it has been stated that when employees are rendered surplus due to closure of a scheme or for any other reason due to abolition of posts they are ordinarily liable to be terminated. However, having regard to the long duration of service that they might have put in and to avoid hardship to such employees, it was the policy of the Government to, as far as possible, absorb them in an equivalent post or a lower post if it is feasible to do so. It would be clear from the wordings to the above effect in the first part of paragraph 3 of the said Circular that, reference is made to the existing policy of the Government which was of absorbing the surplus staff as far as possible to avoid their termination and hardships to them. The Circular then proceeds to lay down that such employees who are absorbed in other posts shall be placed in seniority below all the existing employees in such posts and in the event of abolition of any post of such cadre termination should be effected of the junior-most employees after fixing the seniority in the above manner. It is, thus, clear from the said Circular that a policy was evolved to fix seniority of the surplus staff who were absorbed or accommodated in any other cadre and accordingly such surplus staff was to be given seniority below all the existing employees in such cadre. In other words, he was to be treated as a fresh recruit in the cadre getting date of his seniority from the date of his entry in the cadre. The original respondents Nos. 3 to 7 had no right under any rule to claim the date of original appointment in some other departments where they were declared surplus as the date of their appointment in the cadre of clerks in the Directorate of Civil Supplies (Accounts), nor could they have been brought to this cadre by transfer. Their appointments were in fact in the nature of fresh appointments and as per the existing policy of the Government declared in the Circular dated 18th April, 1978, they woul normally have been terminated but were being accommodated in this Directorate as it was possible to do so. Even apart from the Circular dated 18th April, 1978, since the original respondents Nos. 3 to 7 had no right to come to the cadre of clerks in the Directorate of Civil Supplies (Accounts) under any recruitment scheme or by way of transfer, they could not have claimed any seniority over those who were already working in the said cadre of this Directorate of Civil Supplies (Accounts) We, therefore, find no reason to take any different view from the one taken by the learned single Judge for the reasons indicated in the impugned decision. Both the Appeals are, therefore, dismissed with no order as to costs.