Gujarat High Court
Gujarat Rajya Panchayat Seva ... vs State Of Gujarat on 25 September, 1998
Equivalent citations: (1999)2GLR833
JUDGMENT K.R. Vyas, J.
1. The petitioners of both these petitions have approached this Court for a prayer that the members of the petitioner Association are not required to pass the examination prescribed under the Panchayat Service Senior Clerk and Aval Karkum Qualifying Examination Rules, 1976 (hereinafter referred to as "the Rules").
2. The petitioner No.1 in Special Civil Application No.10669 of 1994 is the Federation of the employees serving in the Panchayat Service of the respondents constituted under section 203 of the Gujarat Panchayats Act in connection with the Panchayat affairs while the petitioner of Special Civil Application No.10818 of 1994 is the Association of Class III employees of the Baroda District Panchayat. It is the case of the petitioners that various Panchayats were constituted under the said Act on 1-4-1963. The respondent No.1 i.e. State of Gujarat allocated to the Panchayat services officers and servants as provided under section 206 of the Act and such employees are the members of the petitioner Association. On establishment of Panchayat services from 1-4-1963 under section 203 of the Act, appointments have been made by following the provisions contained in Sections 210 and 211 of the Act. Respondent No.2 i.e. Gujarat Panchayat Service Selection Board is constituted under section 210 of the said Act and the Panchayat Selection Committee and District Primary Staff Selection Committee have made recruitment under the aforesaid section in various departments and cadres of various Panchyayats. They are also serving in the Panchayat services. Promotions have also been given to the Panchayat employees in different cadres and departments in accordance with the Recruitment Rules. The employees who are directly recruited and serving with the Panchayats are also members of the Petitioners. It is an undisputed fact that when Panchayat Service Senior Clerk and Aval Karkum Qualifying Examination Rules, 1976 were framed in the year 1976, an amendment was made therein by which it was provided that those employees who have completed the age of 45 years as on 9-7-76, are not required to pass the said departmental examination. However, no examinations were held in pursuance to the said Rules and therefore the members of the Panchayat Services were given promotions and confirmations from time to time without appearing at and passing the said examination. One more fact which is required to be mentioned is that on 24-9-90 the Rules were amended whereby the cadre of Dy Chitnis, Dy Mamlatdars, Assistant Taluka Development Officers etc were included in the Rules of 1976.
3. On 16-1-93 the respondent No.2 for the first time issued Notification stating that the examination will be held in July, 1993. The said notification was challenged by the petitioner of Special Civil Application No.10669 of 1994 by filing Special Civil Application No.5811 of 1993 on 5-8-92 and learned brother R.K. Abichandani, J issued certain directions, inter alia, directing the petitioner Federation to make a representation to the respondent No.1 for redressing their grievances which were voiced by the members of the Federation within four weeks and stayed the implementation of the Rules in question and respondent No.1 State of Gujarat was directed to consider the said representation accordingly. Direction to give personal hearing to the petitioner before deciding the representation was also given. A further direction was also given not to hold the ensuing examination till the representation is finally decided by the respondent No.1. It was also further directed that if the decision goes against the petitioner, it would be open to the petitioner Federation to take recourse to law. In view of the above directions, the petitioner of that petition withdrew the said petition.
4. It is the grievance of the petitioner that although hearing was given in pursuance of the order passed by this Court, instead of communicating the decision, the respondents issued a letter as well as an advertisement dated 18-8-94 and 19-8-94 announcing the examination to be held on 17th, 18th and 19th September, 1994. Both the petitioners have challenged the said decision by way of these petitions.
5. Both the petitions came up for hearing as to admission before learned brother M.R. Calla, J who, after hearing the parties , was pleased to issue Rule in both the petitions and kept them for hearing of interim relief on 14-9-94. On 14-9-94, learned brother M.R. Calla, J gave certain directions, the relevant portion whereof reads as under:
"In the facts and circumstances of the case, I shall deem it appropriate to direct that qua all those candidates who attain the age of 45 years on or before 17-9-94 i.e. the date of the ensuing examination, the said examination shall remain stayed. However, the respondents may go ahead with the examination for those who are desirous to appear in this examination and even if any person who has already crossed the age of 45 years wants to appear by his own choice, he may be permitted to appear in the said examination and it is expected that the examination which will be held for candidates below the age of 45 years shall be held strictly in accordance with Rules."
6. In the mean time one more development has taken place. The employees of the petitioner Panchayat went on strike in the month of December, 1997 on account of certain disputes and differences with respondent No.1. In order to settle the disputes and differences, a meeting was held on 17th and 18th December, 1997 between the petitioner Federation as well as the Panchayat on one hand and the Hon'ble the Chief Minister, Hon'ble Finance Minister, Hon'ble Panchayat Minister, the Chief Secretary, Additional Chief Secretary (Finance) and Additional Chief Secretary, Panchayat on the other, and in the said meeting 24 issues were discussed and finally settled between the parties. The said settlement is placed on the record of this petition. In the meeting held for resolving the disputes and differences and for arriving at a binding settlement, it was decided that it would be obligatory on the part of the State Government to comply with the same and give effect to the decision recorded in the minutes of the meeting held on 19th December, 1997. Issue No.7 of the minutes is relating to exemption to be given to the employees who had completed 45 years of age from appearing at the examination or going for training. The minutes of the meeting dated 19th December, 1997 with respect to paragraphs 7.1, 7.2, 7.3 and 7.4 are relevant for the purpose of the present petition and they read as under:
"7.1 Wherever provisions are made for departmental examination in the Panchayat services and Government has not conducted the examination, in all such cadre services, where the employees are not directly responsible, in such cases, employees who have completed 45 years are exempted from departmental examination and it has been decided to extend the benefits of promotion and higher pay scale.
7.2 In conformity with the interim directions of the Hon'ble High Court in SCA No.10669 of 1994 and SCA No. 6857 of 1996, it has been decided to extend the benefit of exemption w.e.f. 17-9-94.
7.3 Wherever provisions are made for training and training has not been arranged by the Government and or all the concerned are not included in training programme, in such cases and posts-cadre and on this count who are not extended higher pay scale and promotion will be eligible for higher pay scale and promotion.
7.4 After appointment in lower post, if the rules are changed for recruitment or promotion in higher post then in such cases the employees will be given benefits of higher pay scale. It is decided to pass appropriate orders within one week."
Pursuant to the said minutes of the meeting, respondent No.1 passed a Resolution bearing No. KHTY-3096-7100-KH dated 6th April, 1998, in Panchayat, Rural Housing and Rural Development Department. It is the case of the petitioners that the said Resolution passed by the Government is not in conformity with the settlement arrived at in the aforesaid meeting and it completely debars from what is recorded and sets at naught the settlement arrived at between the parties and is in complete breach of the agreement which is recorded in the said minutes of the meeting and is prejudicial to the interest of the employees. The said resolution dated 6th April, 1998, when translated into English, is reproduced as under:
"Reg. Exemption to employees having 45 years of age, from the Departmental Examination in Panchayat Service.
7. Government of Gujarat, Panchayat, Rural Housing and Rural Development, Resolution No. KHTY-3096-7100-KH-Sachivalaya, Gandhinagar Read: (1) The then Panchayat, Housing & Urban Development Deptt., Notification No. KP(76)(115)-PSB-1074-2954/Th. dated 9.7.1976.
(2) The then Panchayat, Housing & Urban Development Deptt., Notification No. KP-195-(77)-PSB/1077-9970/Th., dated 24.11.1977.
RESOLUTION:
By the notification shown at Sr. no. 1 in the preamble the departmental Examination Rules, 1976, have beeng published in respect of Senior Clerk/Aval Karkun in the panchayat service and by the Notification shown at sr. no. 2, in the preamble, the employee having 45 years of age as on 9.7.76 have been given exemption from the Departmental Examination under the above Rules.
2. After coming into force, the above Rules, for a long time the departmental examinations could not be held under the said Rules. As such, it was being represented often by the Employees Association to give exemption from the said departmental examination to those employees having age of 45 years as on the date of holding the departmental examination for the first time and in this connection court cases are also made.
3. In these circumstances after careful consideration in the matter, the Government has decided to grant exemption from the said departmental examination to candidates for promotion i.e. those employees who have completed 45 years, the date of holding of departmental examination for the first time under the said Rules. The employees shall get the benefits from the date of the orders, who are given benefits of exemption. The persons benefitted by this exemption shall not get benefit of being Senior to those persons who have earlier passed the departmental examination and got promotion on higher pay scales.
4. The Government has decided to exempt from the deptt., examination and also to give benefits of promotion and higher pay scales to all the employees who have completed 45 years of age, in those cadres of panchayat Services, where there is the provisions of departmental examination, but examination is not held by the Govt., and the employees of all such cadres are not directly responsible as such for it. However, if the departmental examination for those cadres aqre held then they are required to appear in and pass therein and these benefits shall be allowed only after getting an undertaking to the effect that in case they fail to do so, the benefits shall be withdrawn.
5. In the cases where there are provisions of Training for promotion and due to the reason of not holding the training by the department or all persons could not be accommodated in the training the promotion and higher pay scales are not given, in such cadres, the Govt. had decided to consider them fit for promotion as well as giving higher pay scales. However, in case they do not agree to undergo training for promotion, when asked for the same, or they fail in the post training examination, the benefits of promotion or higher pay scales shall be withdrawn. These benefits shall be allowed only after obtaining an undertaking in the matter.
6. The department shall have to make arrangements for training/examination within one year from the date of issuance of the said orders.
7. These ordershave been issued after getting approval of General Admn. Deptt. on 15.1.1998 and Finance Deptt. on 13.1.98 in this department's file of Even No. By order and in the name of the Governor of Gujarat.
Sd/ (H.B. Bhavsar) Deputy Secretary, Panchayat, Rural Housing & Rural Dev. Department."
8. The petitioner Panchayat has in fact challenged the said Resolution by filing Civil Application No.7721/98 for quashing and setting aside the said Resolution and for a direction to respondent No.1 to issue appropriate Government Resolution in conformity with the settlement dated 19th December, 1997 and to give effect to the same. This Court on 25th August, 1998 ordered the said Civil Application to be heard with the main matters.
9. Before considering the submissions made by the learned Advocates of the parties, it is necessary to refer to some of the relevant rules of the Panchayat Service Senior Clerk and Aval Karkun Qualifying Examination Rules, 1976. Rule 3 of the said Rules provides for passing of Departmental Examination by direct recruits according to which all direct recruits shall be required to pass the Departmental Examination during the probation period of two years from the date of joining service. Second Proviso to the said Rule provides that the direct recruits shall pass the said examination in not more than three chances and four chances in the case of direct recruits belonging to the Scheduled caste or Scheduled Tribe. The examinations are required to be held in April and October and the direct recruits have to pass the examination as provided in the said Rules. Rule 4 provides for passing of Departmental Examination by person of Superior Panchayat Service subject to the provisions of Rule 5. As per the definition of "Superior Panchayat Service" contained in Rule 2 (i) it includes persons appointed as Clerks and Senior Clerks and Aval Karkuns. Rule 4 requires (i) every person of the Superior Panchayat Service, who is eligible for appointment to a higher post, to pass the Departmental Examination after he has completed five years continuous service and within a period of three years from the date he is granted permission to appear at the Departmental Examination for the first time strictly according to his serniority in accordance with the provisions of Rule 11. Rule 5 provides for Departmental Examination to be passed in specified chances and within specified period. Rule 10, which is relevant for our purposes, deals with holding of Departmental Examination and it reads as under:
"10. Holding of Departmental Examinations-
The Departmental Examination shall ordinarily be held by the Board twice in year in the months of April and October.
Provided that if the Board is of opinion that the number of candidates desirous of appearing at the Departmental Examination is in excess of the seats available, the Board may hold one or more examinations in addition to the Departmental Examination to be held in April and October.
Provided further that if the Board decided to change the month in which the Departmental Examination is to be held, it shall communicate its decision to the Government and the District Development Officer and also specify the last date by which applications of candidates may be forwarded to it by the District Development Officer."
10. Rule 11 cast a duty on the District Development Officer to furnish to Board names and particulars of candidates for Departmental Examination. Under the said Rules, the District Development Officer is required to select 400 senior most persons out of the persons from all Districts who are to be allowed to appear at the Departmental Examination. Rule 12 provides for making application for admission to Departmental Examination.
11. A combined reading of the aforesaid Rules makes it clear that the District Development Officer is required to prepare a list of 400 senior most persons out of the persons from all Districts for appearing at the examination and that the examination is required to be held at least twice in year i.e. in the month of April and October. The specified period with in which the examination is to be passed and the number of chances available to the candidates are mentioned in Rules 3 and 4 and the holding of departmental examination with the requirement of furnishing names and particulars of the candidates for appearing at the Examination is provided under Rules 10 and 11. There is no dispute to the fact that although the respondents could have held 36 examinations within all these 18 years, they have not held any examination and without insisting for the passing of the departmental examination have granted promotion and given confirmations to the employees and thereafter also further promotions have been given. Considering this aspect of the matter, brother Calla J has rightly observed in his interim order dated 14-9-94 that :
"...Thus by this time about 36 examinations should have been held. But the fact situation is that the examination has not been held even once as has been stated in earlier part of this order. According to Rule 11, four hundred senior most persons out of the persons from all Districts are to be allowed to appear at the departmental examination and as on 9-7-76 those candidates who had attained the age of 45 years were exempted from the examination. 9-7-76 was fixed under Rule 4(4) because the Rules came into force on the said date and the Rule making authority legitimately expected that the examination will be held in October,1976 and, therefore, the legislative intent was to exempt those who have already attained the age of 45 years and the examination may be held only for those who are below 45 years...."
12. In view of this situation, brother Calla J has deemed it proper to direct that:
"...qua all those candidates who attain the age of 45 years on or before 17-9-94 i.e. the date of the ensuing examination, the said examination shall remain stayed. However, the respondents may go ahead with the examination for those who are desirous to appear in this examination and even if any person who has already crossed the age of 45 years wants to appear by his own choice, he may be permitted to appear in the said examination and it is expected that the examination which will be held for candidates below the age of 45 years shall be held strictly in accordance with Rules."
13. The resultant effect of the respondents having failed to hold the examinations for all these 18 years is that in all 14400 persons (2 examinations per year multiplied by 18 years and 400 candidates per examination multplied by 36 examinations comes to in all 14400 candidates) of more than 45 years of age were prevented from appearing at the examination and were granted promotions as well as cofirmations. The facts themselves are so eloquent which made this Court to grant stay from appearing at the examination which was scheduled to be held on 17-9-94. In substance, brother Calla J deemed it appropriate, considering the facts and circumstances of the case, to grant stay from appearing at the examination qua all those candidates who attained the age of 45 years on or before 17-9-94 which was the date of the examination. Keeping the said interim order in mind, a meeting was held for resolving the disputes and differences and for arriving at a final and binding settlement between the Hon'ble the Chief Minister, Hon'ble Finance Minister, Hon'ble Panchayat Minister and the Secretaries to the Government on one hand and the petitioners on the other and accordingly the disputes and differences were resolved and a settlement was arrived at .Needless to state that the State Government has agreed that those employees who completed 45 years of age as on 17-9-94 which was the cut off date will be granted exemption according to the interim order passed by this Court.
14. Mr. J.R. Nanavati, learned Advocate appearing for the petitioners, attacked the Resolution dated 6th April, 1998 by contending that the conditions imposed vide the said Resolution are contrary to the Circular of the Government dated 15th July, 1970, the Government Resolution dated 30th March,1989 and Rule 8 of the Rules of 1976 and also contrary to and in breach of the interim order passed by this Court (Coram: M.R. Calla, J) and, therefore, the Resolution dated 6th April, 1998 cannot be given effect to. Under the circumstances, the petitioners have prayed for a declaration that the employees who have completed 45 years of age on or before 17th September, 1994 shall be exempted from passing the Departmental Examination and shall be entitled to all benefits including the benefits of promotion , as if they have passed the said examination.
15. In order to appreciate the submission of Mr. Nanavati, let us once again consider the Resolution dated 6th April, 1998 issued by the Panchayat, Rural Housing and Rural Development Department in purported compliance with the settlement recorded in the minutes of the meeting held on 19th December, 1998. As stated earlier, the minutes were recorded between the State Government and the petitioner Union whereby it was decided that wherever provisions are made for departmental examination in the Panchayat Services and Government has not conducted the examination, in all such cadre services, where the employees are not directly responsible, in all such cases the employees who have completed 45 years be exempted from departmental examination and it has been decided to extend the benefits of promotion and higher pay scales.It was further provided that in conformity with the interim direction of this Court in SCA No. 10669/94 and SCA 6857/96 it has been decided to extend the benefit of exemption with effect from 17-9-94 and that wherever provisions are made for training and training has not been arranged by the Government and or all the concerned are not included in training programme, in such cases and posts-cadre and on this count who are not extended higher pay scale and promotion will be eligible for higher pay scale and promotion and finally after appointment in lower post, if the rules are changed for recruitment or promotion in higher post then in such cases the employees will be given benefits of higher pay scale. Now, in the Resolution dated 6th April, 1998, it has been provided that the Government has decided to grant exemption from the said Departmental Examination to candidates for promotion i.e. those employees who have completed 45 years as on 14-9-94 that is the date of holding of Departmental Examination for the first time under the said Rules and that the employees, who are given benefits, shall get the benefits from the date of the orders. It is further provided that the persons benefited by this exemption shall not get benefit of being senior to those persons who have earlier passed the Departmental Examination and got promotion or higher pay scales.Upto these part of the Resolution, there cannot be and should not be any objection by any body. However, the later part of the Resolution which imposes conditions that the Government has decided to grant exemption from Departmental Examination and also to give benefits of promotion and higher pay scales to all the employees who have completed 45 years of age in those cadres of Panchayat services where there is provision for departmental examination but the examination is not held by the Government and the employees of such cadres are not directly responsible , the Government has taken a somersault. However, after the Departmental Examination for those cadres are held, then they are required to appear in and pass therein and the benefits shall be allowed only after getting an undertaking to the effect that in case they fail to do so, the benefits so extended shall be withdrawn. One more condition is also imposed to the effect that in case where there are provisions of training for promotion and due to the reason of not holding the training by the department or that all persons could not be accommodated in the training, the promotion and higher pay scales are not given in such cadre, the Government has decided to consider them fit for promotion as well as giving higher pay scales. However, in cases they do not agree to undergo training for promotion when asked for the same or they fail in the post-training examination for promotion, the benefit of promotion or higher pay scales shall be withdrawn. This benefit shall be allowed only after obtaining undertaking in the matter. In my opinion, the imposition of conditions asking the employees , who are exempted on account of the fact that they have completed 45 years of age as on 14-9-94, to appear at the Departmental Examination after 14-9-94 and that they would be entitled to the benefits on their passing the said examination, is a condition not only contrary to the settlement but also absurd on the face of it. Once the Government has fixed a cut off date of 14-9-94 and granted exemption to the employees who have attained the age of 45 years on the said date, the action of again asking the employees to appear at the examination to be held thereafter is not sustainable. In other words, the Government conferred a right of exemption to the employees, who have attained the age of 45 years as on 14-9-94, but for the service benefits viz promotion as well as higher pay scales, wants them to clear the examination. If that is so, then there is no use of granting exemption to the employees. An employee who attained the age of 45 years on 14-9-94 is bound to grow older and older in the subsequent years and, therefore, when the Government decides to fix 45 years as the age limit for granting exemption, it cannot change its stand for the same employees and insist for appearing at the subsequent examinations. A bare perusal of the Resolution makes an interesting reading that the Government has merely granted exemption from appearing at the examination and not for the service benefits. This is ridiculous and absurd. The Departmental Examination is always held and meant for the purpose of granting service benefits like promotion as well as higher pay scales. Therefore, once the decision is taken to grant exemption to the employees, who have completed 45 years of age as on the cut off date of 14-9-94, this would naturally follow that they are not required to appear at the examination and consequently they are entitled to the same service benefits of promotion as well as higher pay scales as if they have passed the examination. In this view of the matter, I am clearly of the opinion that the conditions imposed that
(i) if the departmental examinations for those cadres are held, then they are required to appear at and pass therein and then benefits shall be allowed only after getting an undertaking to the effect that in case they fail to do so , the benefits shall be withdrawn;
(ii) in case they do not agree to undergo training for promotion when asked for the same or they fail in the post-training examination, the benefits of promotion or higher pay scales shall be withdrawn; and
(iii) the benefits shall be allowed only after obtaining an undertaking in the matter, are the conditions in the Resolution which are extraneous, malafide and illegal and are made with a view to frusterate the agreement arrived at between the parties and, therefore, those conditions in the Government resolution dated 6th April, 1998 are liable to be set aside.
16. Mr. Hasurkar, learned Government Solicitor, however, submitted that the conditions in the impugned Resolutuion are in conformity with the Rules and, therefore, for the purpose of promotion as well as higher pay scales, it is necessary for the employees to pass the Departmental Examination. It is not possible for me to accept this submission for the reasons already referred to hereinabove and more particularly when the Government itself is responsible for not holding the exemption for a long period of 18 years denying the Government employees a right to appear at the examination for the purpose of getting service benefits. The Government itself has granted promotion and service benefits to the employees in the interegnum period and when it was decided to grant exemption to the employees, who have completed 45 years on the cut off date i.e. 14-9-94 , from apeparing at the Departmental Examination, it is too much for the Government to insist the employees to clear the examination after the cut off date. I am conscious of the fact that the employees are granted exemption by virtue of the Government Resolution which is nothing but an administrative instruction and though the administrative instruction cannot prevail over the statutory rules, there is no bar to exercise executive power, if the executive power is exercised in conformity with the statutory Rules. Rule 4(4) of the Rules provides for persons of super Panchayat service who have reached the age of 45 years on 9th July, 1976 shall be exempted from passing of the departmental examination. By exercising the said power the Government in fact granted exemption to the persons of super Panchayat service who have reached the age of 45 years on 9th July, 1976 from passing the departmental examination. Thus, having once granted the exemption from appearing at the Departmental Examination to the persons of super Panchayat service , who have completed 45 years of age, the Government, in the present case also, after considering the peculiar fact of not holding examinations for a long period of 18 years, in a high level meeting attended by the Hon'ble the Chief Minister and other Hon'ble Ministers and the Secretaries to the Government , decided to grant exemption on the similar line to persons having attained the age of 45 years on 14-9-94. This would on the contrary go to suggest that the Government was keen to amend its mistake of not holding the examinations for a long period of 18 years .In fact the Government has realised the difficulties of employees belonging to the super Panchayat service and, therefore, amendment in the Rules to that effect has become necessary which I am sure is a formality and the Government will do it in due course of time.
17. In view of the aforesaid discussion, these petitions are partly allowed. It is held that the conditions imposed in the Resolution dated 6-4-1998 that (i) if the departmental examinations for those cadres are held, then they are required to appear at and pass therein and then benefits shall be allowed only after getting an undertaking to the effect that in case they fail to do so , the benefits shall be withdrawn; (ii) in case they do not agree to undergo training for promotion when asked for the same or they fail in the post-training examination, the benefits of promotion or higher pay scales shall be withdrawn; and (iii) the be befits shall be allowed only after obtaining an undertaking in the matter, are the conditions in the Resolution which are extraneous, malafide and illegal and are made with a view to frusterate the agreement arrived at between the parties and, therefore, those conditions in the Government resolution dated 6th April, 1998 are set aside. It is however, clarified that this finding will not come in the way of the respondents to consider the case of those cadres of Panchayat services where there is a provision of departmental examination and that the departmental examination and training for those cadres are held and when the persons of those cadres have appeared and passed prior to 14-9-94 they will be entitled to get the benefit arising out of passing the departmental examination and training. Consequently the persons belonging to Super Panchayat service, who have passed any examination which are held after 14-9-94 will not be entitled to claim seniority and/or other benefits like promotion as well as higher pay scales qua the persons of super Panchayat service who have attained the age of 45 years on 14-9-94 and have thus been exempted from appearing at the Departmental Examination. Rule in each of these petitions is made absolute according with no order as to costs.
18. In view of the above CA 7721/98 is allowed accordingly with no order as to costs.