Ashokkumar Laxmikant Dave Senior ... vs State Of Gujarat Through ...
2022 Latest Caselaw 1117 Guj

      C/SCA/15565/2008                                     JUDGMENT DATED: 02/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 15565 of 2008


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1      Whether Reporters of Local Papers may be allowed YES
       to see the judgment ?

2      To be referred to the Reporter or not ?                              NO

3      Whether their Lordships wish to see the fair copy NO
       of the judgment ?

4      Whether this case involves a substantial question NO
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
    ASHOKKUMAR LAXMIKANT DAVE SENIOR ACCOUNTANT CLERK & 10
                            other(s)
                            Versus
        STATE OF GUJARAT THROUGH SECRETARY & 5 other(s)
==========================================================
Appearance:
MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1,10,11,2,3,4,5,6,7,8,9
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
MS MAMTA R VYAS(994) for the Respondent(s) No. 5,6
RULE SERVED for the Respondent(s) No. 1,2,3,4
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                 Date : 02/02/2022
                                 ORAL JUDGMENT

1. Heard learned Advocate Mr. Premal R. Joshi for the petitioners, learned AGP Mr. Utkarsh Sharma for the respondent No.1-State, learned Advocate Mr. H. S. Munshaw for the respondent No.3 and learned Advocate Ms. Mamta R. Vyas for the respondent Nos. 5 and 6.

2. The present petitioners who were working as Junior Clerks with the

C/SCA/15565/2008 JUDGMENT DATED: 02/02/2022

respondent No.3, Surendranagar District Panchayat, assail orders dated 19.05.2007 and 22.10.2008 passed by the State Government inter alia directing to consider seniority of respondent Nos. 5 and 6 in the cadre of Junior Clerk from their date of appointment in the cadre of Talati.

3. Facts relevant for the purpose of this petition are narrated as hereinbelow:

3.1 The petitioners were originally appointed in the respondent-District Panchayat as Junior Clerks. That the respondent-District Panchayat had published final seniority list for Junior Clerks on 15.10.1997 showing the position as on 01.07.1996. It appears that respondent No.6 had, at that stage, approached the District Development Officer (for short "the DDO") questioning the said seniority list by way of appeal and whereas the same had been rejected by the DDO vide order dated 23.02.1999. The dispute raised by respondent No.6 inter alia was for claiming seniority from the date of his appointment as a Talati.

3.2 It would be pertinent to mention here that respondent Nos. 5 and 6 were originally appointed as Talati-cum-Secretary Village Panchayats and later on they came to be appointed as Junior Clerks with the respondent- District Panchayat. It was the claim of the private respondents that for the purpose of counting of the seniority in the cadre of Junior Clerk, the date of appointment of the private respondents in the cadre of Talati-cum-Secretary would not be reckoned.

3.3 The respondent No. 6 not having challenged the order passed by the DDO, the District Panchayat had again published a seniority list in the cadre of Junior Clerks and whereas the respondent Nos. 5 and 6 had approached the Development Commissioner challenging the order dated 23.02.1999 passed by the DDO, Surendranagar. The Development Commissioner vide

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an order dated 2/4-5-2003 had set aside the order passed by the DDO dated 23.02.1999 and had remanded back the matter to the DDO, Surendranagar. Upon remand, the DDO, Surendranagar, passed an order dated 22.02.2005 allowing the appeal of the respondent Nos. 5 and 6 and whereas the Panchayat was directed to place the names of the respondent Nos. 5 and 6 in the seniority list of the Junior Clerks from the date of their appointment in the cadre of Talati. A provisional seniority list had been published by the respondent-District Panchayat whereby seniority position had been granted to respondent Nos. 5 and 6 from the date of their appointment as Talati. The petitioners being aggrieved by the order passed by the DDO had challenged the same before this Court by preferring Special Civil Application Nos. 11887 of 2005 and 11919 of 2005 and whereas Co- ordinate Bench of this Court (Coram : Jayant Patel, J) vide and order dated 06.12.2005 had been pleased to direct the petitioners to prefer a representation to the DDO and whereas appropriate permission was also granted to the respondent Nos. 5 and 6 to make submissions and whereas the DDO was directed to pass an order a fresh within a period of 4 months from the date of receipt of the representation and whereas till such time order dated 22.02.2005 had been kept in abeyance. The petitioners accordingly had made representation and the DDO, Surendrangar vide an order dated 26.07.2006 after affording opportunity to all parties had allowed the representation of the petitioners and the seniority position had been re- fixed. The respondent Nos. 5 and 6 being aggrieved by the same had approached this Court by preferring Special Civil Application Nos. 22743 and 22746 of 2006 and whereas vide order dated 02.11.2006, Co-ordinate Bench of this Court had permitted the respondent Nos. 5 and 6 to prefer representation to the respondent No.1 herein who was directed to re- examine the issue and pass an appropriate order. It appears that the respondent No. 1 had passed an order dated 19.05.2007, whereby the

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seniority of respondent Nos. 5 and 6 was directed to be reckoned from the date of their appointment as Talati-cum-Mantri. It appears that the District Panchayat had modified the seniority list of Junior Clerks as per order dated 19.05.2007, being aggrieved by which, the petitioners herein had submitted a representation to the respondent-District Panchayat and whereas the District Panchayat had forwarded the same to the State Government and whereas ultimately vide order dated 22.10.2008 the State Government had instructed the respondent No.3 to act according to earlier order dated 19.05.2007 and whereas it was deemed appropriate not to interfere with the order dated 19.05.2007. The petitioners being aggrieved and dissatisfied with the said orders have approached this court by preferring the present petition.

4. Learned Advocate Mr. Joshi for the petitioners would submit that the impugned orders dated 19.05.2007 and 22.10.2008 are absolutely erroneous and bad in law, since the said orders do not consider the fact that the respondent Nos. 5 and 6 have been appointed/transferred to the post of Junior Clerk from the post of Talati-cum-Mantri and whereas upon transfer from one cadre to another, the respondent Nos. 5 and 6 would automatically lose their seniority. Learned Advocate would further submit that the petitioners had been appointed in the cadre of Junior Clerk after the selection process and the respondent Nos. 5 and 6 were appointed through transfer. Learned Advocate would submit that upon being transferred from the cadre of Talati to the cadre of Junior Clerk, the seniority of the original cadre ought not to be considered for the purpose of seniority in the transferred cadre. Leaned Advocate would further submit that, in any case, services rendered in a different cadre ought not to be counted for the purpose of seniority in all together different cadre. Thus, submitting learned Advocate Mr. Joshi has requested this Court to set aside the impugned orders and allow the present petition.

C/SCA/15565/2008 JUDGMENT DATED: 02/02/2022

5. As against the same, learned Advocate Ms. Mamta Vyas for the respondent Nos. 5 and 6 would submit that the respondents had been appointed as Talati-cum-Mantri much earlier than the date the petitioners were appointed as Junior Clerks. Learned Advocate would submit that on account of policy of the State Government prevalent at that time, the respondent Nos. 5 and 6 had been transferred from the cadre of Talati-cum- Mantri to the cadre of Junior Clerk and whereas it would be a great injustice to the respondent Nos. 5 and 6 if their seniority in the cadre of Talati is not counted for the purpose of fixing seniority in the cadre of Junior Clerk. Learned Advocate would submit that had the respondent Nos. 5 and 6 remained in the cadre of Talati, they would have got the benefit of seniority from the date of their original appointment and whereas since the respondent Nos. 5 and 6 were transferred as per the policy of the State Government, the same should not prejudice to the petitioners. Learned Advocate Ms. Vyas would also draw the attention of this Court to the impugned orders, more particularly impugned order dated 19.05.2007 and would submit that the respondent No.1 had considered the fact that the Recruitment Rules of the year 1977 do not state anything as regards counting of seniority and taking this aspect in to consideration, the seniority of respondent Nos. 5 and 6 was directed to be fixed from their date of original appointment as Talati-cum-Mantri. Learned Advocate Ms. Vyas would submit that no error has been committed in passing of the impugned orders dated 19.05.2007 and 22.10.2008 and hence this Court may not interfere with the impugned orders and the petition may be rejected.

6. Learned AGP Mr. Utkarsh Sharma for the respondent-State has supported the impugned orders and would submit that the orders are passed in accordance with law and whereas this Court may not interfere with the same.

C/SCA/15565/2008 JUDGMENT DATED: 02/02/2022

7. Learned Advocate Mr. H.S. Munshaw for the respondent- District Panchayat would submit that they have implemented the decision of the State Government and whereas Mr. Munshaw has also supported the impugned decisions.

8. In rejoinder, learned Advocate Mr. Joshi would submit that the contention of the respondent Nos. 5 and 6 that they were transferred as per the policy of the State was not correct. Learned Advocate would submit that as such communication dated 18.09.1981 by the respondent No. 6 and communication approximately the same time by the respondent No.5 would clearly show that both the respondents have given their consent for being transferred as Junior Clerk. Learned Advocate would submit that the respondents having consented for their transfer to the cadre of Junior Clerk could not be heard to contend that they had been transferred as per the extant policy of the State that is to say that they had been transferred without their consent.

9. Heard learned Advocates for the respective parties and perused the records.

10. The only question which arises for consideration of this Court is whether the seniority of the respondent Nos. 5 and 6 in the cadre of Junior Clerk should be reckoned from the date of their entry in the said cadre or from the date of their entry in the cadre of Talati-cum-Mantri.

11. The State Government through Panchayats, Housing and Urban Development Department (as it existed then), had published the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967 which came to be amended vide the Gujarat Panchayat Service (Classification and Recruitment) (2nd Amendment) Rules 1977. The said Rules were notified with effect from 13.05.1977 and whereas the respondent Nos. 5 and 6 were

C/SCA/15565/2008 JUDGMENT DATED: 02/02/2022

transferred from the post of Talati-cum-Secretary to the post of Junior Clerk in the Panchayat as per the terms of the said Recruitment Rules. The said Rules inter alia envisage appointment to the post of Clerk and whereas since the Rules would be relevant for deciding the present dispute, the relevant Rules are quoted herein below for better appreciation.

"III. Clerical Group III.

1. Clerks - (1) Appointment to the post of Clerk shall be made,-

(a) by direct selection through the respective Selection Committee on the result of the competitive examinations held by the Board; or

(b) by transfer of a suitable person from amongst the person holding the post of Talati-cum-Village Panchayat Secretary; or

(c) by promotion of a person of proved merit and efficiency from amongst the members of the Inferior Panchayat Service.

XXX XXX XXX

(3) To be eligible for appointment by transfer to the post of Clerk, a Talati-cum-Village Panchayat Secretary shall, -

(a) have passed the Secondary School Certificate Examination or an examination recognised by Government as equivalent to it, and

(b) have rendered about three years' service as Talati-cum- Village Panchayat Secretary.

XXX XXX XXX

(5) A candidate whether appointed by direct selection or a person appointed by transfer from Talati-cum-Village Panchayat Secretaries' cadre shall have to undergo such course of pre-service and a post-service training as may be prescribed by Government from time to time.

       C/SCA/15565/2008                                   JUDGMENT DATED: 02/02/2022



                  (6)    The selected candidate shall be on probation for a
                  period of one year;

Provided that the condition of probation shall not apply in the case of a candidate who is recruited to fill vacancies in a purely temporary capacity for the period not exceeding one year. (7) A candidate whether appointed by direct selection or by transfer or by promotion shall have to pass the Departmental examination, and an examination in Hindi or Gujarati or both in accordance with the rules prescribed by Government if any. (8) Vacancies of Clerks may be filled by promotion from amongst member of the Inferior Panchayat Service to the extent of availability of suitable candidates from such service and the remaining vacancies shall be filled by direct selection and transfer in the ratio of 2 : 1."

12. A perusal of the Recruitment Rules, more particularly Rule 1 for Clerical Group III inter alia envisages appointment to the post of Clerk by transfer of a suitable person from amongst the person holding the post of Talati-cum-Village Panchayat Secretary. Rule (3) inter alia envisages that for appointment by a transfer, Talati should have passed the Secondary School Certificate Examination or equivalent Government examination and have rendered about three years' service as Talati. Rule (5) envisages that a candidate appointed inter alia by direct selection or transfer shall have to undergo pre-service and post-service training as prescribed by the Government from time to time. Rule (6) envisages that selected candidate being on probation for a period of one year. Rule (7) envisages that a candidate appointed by either mode shall have to pass Departmental Examination in accordance with the rules prescribed by Government. Rule (8) inter alia envisages that priority would be given for filling up of the post by promotion from amongst member of Inferior Panchayat Service to the extent of availability of suitable candidates and whereas the remaining vacancies would be filled in by direct selection and transfer in the ratio of 2 :

1.

C/SCA/15565/2008 JUDGMENT DATED: 02/02/2022

13. Reading of the aforesaid Rules make it absolutely clear that persons from the cadre of Talati were 'appointed by transfer' to the post of clerks and not 'transferred' to the post of clerks. The Rules envisage an appointment being a fresh appointment and the mode of appointment being by transfer. In the considered opinion of this Court, there is a vast difference between appointment by transfer and transfer simplicitor. An appointment by transfer is at par with a fresh appointment and once the candidate is appointed by way of transfer, then except for a lien which the candidate might hold as regards his original cadre, that too if so prescribed under the Rules, the services of the candidate in the former cadre would have no reference for counting seniority in the later cadre. As against the same, if permissible under the Rules an employee could be transferred from one cadre to the another and whereas such a transfer simplicitor would not effect the seniority position of the candidate in his original cadre.

14. The Recruitment Rules envisages appointment by transfer as being a fresh appointment inasmuch as a specific qualification criteria and general experience criteria is prescribed. This would reflect that all persons working in the cadre of Talati were not entitled to be appointed by transfer to the cadre of Clerk. Only a Talati who has passed SSC or equivalent examination and having about three years of experience in the cadre of Talati were considered eligible. Thus, the rules envisaging that only such candidates who were having a particular qualification and experience would be considered for appointment as Junior Clerks, thus making it clear that this was not a case of transfer simplicitor from one cadre to another of all persons working in the former cadre. That the candidate appointed by either mode i.e. by direct selection or by transfer was required to undergo pre-service and post- service training. The selected candidates were to be on probation period of one year. All selected candidates were required to pass the Departmental Examination and while promotion was the desirable mode of appointment

C/SCA/15565/2008 JUDGMENT DATED: 02/02/2022

to the cadre of Clerks, the ratio for appointment between the direct recruitment and appointment by transfer was prescribed as 2 : 1. Thus, while for the purpose of probation and Departmental Examination, appointment through any of the three modes i.e. by promotion by selection or by transfer were kept at par, and for the purpose of undergoing training, appointment by direct selection and appointment by transfer were kept together. Thus, it clearly emerges that while appointment by promotion from amongst eligible candidates from Inferior Panchayat Service did not require to clearing of pre-service and post-service training, but for all other purposes candidates of all three modes were considered at par and most importantly the fact of all candidates being required to undergo probation for a period of one year leads to an inevitable conclusion that an employee in the post of Talati could be appointed as a Clerk by transfer and for all purposes the said appointment was a fresh appointment.

15. It would be further pertinent to mention here that the respondent Nos. 5 and 6 somewhere in the year 1982 had given consent for being appointed as Clerks and whereas along with the consent letters which are placed on record in the affidavit-in-rejoinder by the petitioners, a communication by the Taluka Development Officer to the Deputy District Development Officer, Surendranagar which appears to have been written in pursuance to the consent given by the respondent Nos. 5 and 6 had also been annexed. The said communication dated 03.12.1981 clearly reflects that the same had been written in connection with a communication dated 25.11.1982 by the Deputy District Development Officer. It also appears from reading of the said letter that the Deputy District Development Officer appears to have called for consent from eligible Talatis and whereas the respondent Nos. 5 and 6 had shown their willingness for appointment and whereas one another Talati had shown his disinclination. Thus, from the overall reading of the communications, it appears that, at the relevant

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point of time, consent letters were being sought for from eligible Talatis for being appointed by way of transfer as Clerks and it is upon consent given by the respondent Nos. 5 and 6, they had been appointed on the post in question. Thus, the submission of learned Advocate Ms. Vyas that the appointment was without any consultation with the employees does not appear to be correct. It clearly appears that it was the choice of the employee concerned whether he wants to be appointed in cadre of Clerk from the cadre of Talati and only upon consent being given, the candidates were appointed.

Thus, in the considered opinion of this Court, the position as regards the issue appears to be that a Talati as qualified and having experience as per the Recruitment Rules would be appointed by transfer as Junior Clerk, after such employee had given his consent, and whereas the said appointment by transfer was a fresh appointment for all purposes.

16. In view of the discussion, finding and conclusion arrived at herein above, in the considered opinion of this Court, the impugned orders dated 19.05.2007 and 22.10.2008 being unsustainable and bad in law are hereby quashed and set aside. Seniority of the respondent Nos. 5 and 6 in the cadre of Clerks should be reckoned from the date of their appointment in the cadre of Junior Clerks and not from the date of their appointment in the cadre of Talati-cum-Village Secretary.

The present petition stands disposed of as allowed. Rule is made absolute. No order as to costs.

(NIKHIL S. KARIEL,J) BDSONGARA