Gujarat High Court
Sandip Bharatbhai Pandya vs Account Officer & 2 on 16 December, 2015
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/13951/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13951 of 2015
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SANDIP BHARATBHAI PANDYA....Petitioner(s)
Versus
ACCOUNT OFFICER & 2....Respondent(s)
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Appearance:
MR MB PARIKH, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO MS SHRUTI PATHAK, AGP for the
Respondent(s) No. 3
MR C P CHANIYARA, ADVOCATE for the Respondent(s) No. 1
MR. DINESH N TRIVEDI, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 16/12/2015
ORAL ORDER
1. Petitioner seeks absorption in the cadre of Junior Clerk (Accounts Section). His grievance is that after his regularization in the year 2009, no option has been given by the authority for absorption in the cadre of Junior Clerk(Accounts Section). It is his say that he has been holding the post and performing his duties diligently. Although 10 persons have been recruited on the post of Junior Clerk(Accounts), 17 posts are still vacant.
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2. The petitioner was appointed as Junior Clerk on 2.11.2004 in the office of District Rural Development Agency, Amreli. He was transferred to the Sub Division Office of PWD, Amreli from 2007-2008. In the year 2008-09 he was transferred to Accounts Department, District Panchayat, Amreli. He made a request on 16.4.2010 to the concerned authority to absorb him in the cadre of Junior Clerk (Accounts), since he is holding the post of Junior Clerk for a long time. It is his grievance that though the request was made to the President, District Panchayat, Amreli and personal Secretary of Minister of Panchayat, nothing has happened. Respondent No.2 when initiated the move to directly the recruit employees in the cadre of Junior Clerk(Account Section) by holding examinations, the petitioner has approached this Court raising the grievance against non-reply to his application of absorbing him in the cadre of Junior Clerk (Accounts Section) with the following prayer:-
"7. The petitioner, therefore, prays that:-
A) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the inaction on the part of the resp.no.1 and 2 for not absorbing the present petitioner in the cadre of Junior Clerk Page 2 of 9 HC-NIC Page 2 of 9 Created On Wed Dec 23 00:12:32 IST 2015 C/SCA/13951/2015 ORDER (Account Section) and Your Lordships further be pleased to direct the res.nos.1 and 2 to absorb the petitioner in the cadre of Junior Clerk (Account Section) as he is having requisites qualifications as well as experience for the said post;
C) Your Lordships further be pleased to direct the res.no.1 and 2 to grant higher pay scale to the petitioner as petitioner has already completed 10 years of service in the office of Res.No.1 and 2 as per Govt.
Resolution;
C) Pending admission, and till final disposal of this petition Your Lordships be pleased to direct the res.no.s.1 and 2 to absorb the petitioner in the cadre of Junior Clerk(Account Section) as he is having requisite qualifications as well as experience for the said post;
Amendment carried out as per Court's order dtd:-1-9-2015:-
(C-I) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent authorities to keep one (1) seat vacant for the post of Junior Clerk (Account Section) as recently i.e. in the month of August, 2015 res.no.2 has recruited ten (10) employees for the post of Junior Clerk(Account) and still 17 posts are vacant."
D) Be pleased to grant such other and further relief/s which may be deem fit and proper in the interest of justice."
3. Affidavit-in-reply is filed by respondents No.1 and 2. According to these respondents, present recruitment rules,namely, Junior Clerk/ Accounts Clerk, Class III Recruitment Rules, 2013 have not been Page 3 of 9 HC-NIC Page 3 of 9 Created On Wed Dec 23 00:12:32 IST 2015 C/SCA/13951/2015 ORDER revealed by the petitioner, which are meant for the post of Junior Clerk/Accounts Clerk, Class III. Such rules have come into being vide notification dated 1.1.2014. It is provided therein that appointment to the post of Junior Clerk/Accounts Clerk, Class III in the Superior Panchayat Service shall be made either by promotion of a person of proved merit and efficiency from amongst the persons or by direct selection. In absence of any option for absorption, the petitioner's case for absorbing him as Junior Clerk (Accounts Section) cannot be considered.
4. The affidavit-in-rejoinder is also filed by the petitioner, wherein it is insisted that the petitioner has served for more than 7 years and he is entitled to absorption. It is further urged that other similarly situated employees in the same district panchayat have been absorbed from one cadre to another from the very district panchayat. The petitioner is a commerce graduate with accounts as subject and has a liking in the subject.
5. Learned advocate Mr.M.B.Parikh for the petitioner has emphasized that the Government Rules permit absorption from one cadre to another, and therefore, Page 4 of 9 HC-NIC Page 4 of 9 Created On Wed Dec 23 00:12:32 IST 2015 C/SCA/13951/2015 ORDER the stand of respondents No.1 and 2 of denying him such absorption, despite his request in the year 2010, requires indulgence. He has further urged that it is a misleading statement on oath made by the respondent authorities that no absorption is permissible under the cadre of Junior Clerk (Accounts Section).
6. Learned Assistant Government Pleader Ms.Shruti Pathak has urged that the Gujarat Panchayat Service(Classification and Recruitment)Rules, 1978 published in the Government gazette on 28.4.1978 are still in vogue. She, of course, as urged that the recruitment rules for the Junior Clerks and Accounts Clerk Class-III have already been published in the year 2013. However, it is for the concerned authority to consider as to whether the absorption should be permitted or not.
7. Learned advocate Mr.Chiniyara appearing for respondent Nos. 1 has urged that initially the respondent has taken a stand that with the recruitment rules of 2013 absorption cannot be permitted as the only mode prescribed by these rules is of appointment by either direct recruitment or by way of promotion. However, in wake of these rules, the case of the Page 5 of 9 HC-NIC Page 5 of 9 Created On Wed Dec 23 00:12:32 IST 2015 C/SCA/13951/2015 ORDER petitioner can be considered by considering his length of service, educational qualification and suitability of his allotment in a particular cadre.
8. Having thus heard learned advocates for both the sides and having also considered the request made by the petitioner seeking absorption in the cadre of Junior Clerk(Accounts Section), the respondent authority is directed to consider his request. It is needed to be mentioned here that after his regularization in the year 2009, the petitioner had approached the respondent authority in the year 2010 seeking absorption to the post of Junior Clerk (Accounts Section). It is his say that although 10 posts have been filled in by way of direct recruitment, 17 posts are still lying vacant. He has worked extensively on this post and he has inclination to serve on the said post. He is a commerce graduate with a liking of accounts as a subject and he is performing his duties diligently. The recruitment rules being Gujarat Panchayats Service (Classification and Recruitment) Rules, 1967 ("the said rules" for short) which have been amended in the year 1978, are sill in vogue. When a panchayat servant exercises Page 6 of 9 HC-NIC Page 6 of 9 Created On Wed Dec 23 00:12:32 IST 2015 C/SCA/13951/2015 ORDER option for absorption allotment of the common clerical cadre and common accounts cadre, of course, rule 4 of the said rules provides for issuance of notice by the concerned authority for exercising the option for allotment either in the common clerical cadre or in common accounts cadre. Such options are being exercised within a period of three months from the date on which the notice is served. Such notice shall be served on each such servant individually. If the number of servants who opt for a particular cadre exceeds the number of post available in that cadre, the committee shall finalize the allotment of such servants taking into consideration his experience during the service, his educational qualification and his suitability for allotment in a particular cadre by holding oral test.
9. It needs to be noticed that the option form was already made available to all eligible employees and those of them, who were desirous have possibly filled in the same. It is also apparent from the circular dated 8.2.2014 issued by respondent No.2 that such forms were to be sent to the respective departments by the Junior Clerks. The petitioner also had filled in the same and Page 7 of 9 HC-NIC Page 7 of 9 Created On Wed Dec 23 00:12:32 IST 2015 C/SCA/13951/2015 ORDER indicated that in the year 2010 the form, which had been filled in by him, was not responded to. It was later on submitted to this Court that in response to the application under the Right to Information Act, such exercise was cancelled, in wake of the new rules of the recruitment of the year 2013 on seeking legal advice. However, the stand of of the respondent authority is not correct when the said rules are still in vogue and the same has already been employed in case of other employees. Authority is expected to decide the issue and those employees, who have already opted for being absorbed in the cadre of accounts as Junior Clerk (Accounts Section), their case shall have to be considered and if the number of employees, who opted for a particular cadre exceed the numbers of post available, rules provide as to how such requests are required to be considered.
10. Resultantly, the petition is allowed. Respondents No.1 and 2 are directed to complete the process of deciding the aspect of absorption of the petitioner on the strength of the forms given by him and others earliest as possible but not later than three months from the date of receipt of the copy of this order. Page 8 of 9 HC-NIC Page 8 of 9 Created On Wed Dec 23 00:12:32 IST 2015 C/SCA/13951/2015 ORDER The decision shall be communicated to the petitioner within a week thereafter. Even if it is adverse, the petitioner shall be at liberty to take the appropriate legal recourse if he is aggrieved by any outcome of the same. The petition is disposed of accordingly.
(MS SONIA GOKANI, J.) SUDHIR Page 9 of 9 HC-NIC Page 9 of 9 Created On Wed Dec 23 00:12:32 IST 2015