B.P. Chauhan and Another vs State of Gujarat and Others

P.M. Chauhan, J.—Petitioners B.P. Chauhan and J.S. Patel, initially appointed as Clerks on February 24, 1961 and June 17, 1961

respectively, by the Director of Ports, Gujarat State. Ahmedabad and subsequently promoted as Senior Clerks on October 29, 1977. were

sought to be reverted to the post of clerks by order dated November 15, 1979 as their provisional seniority was sought to be fixed at a lower

stage, considering them as regularly appointed only from April 17, 1971 and not from the date of their appointment, as they appeared and passed

through the test by Gujarat Public Service Commission, under the Gujarat Non-Secretariat Clerk-typists and Typists (Recruitment) Rules. 1970

and the Gujarat Non-Secretariat Clerks, Clerk-typists and Typists (Direct Recruitment Procedure) Rules, 1970. The main contention of the

petitioners is that they should be considered as regularly appointed Clerks from the date of their appointment and not from the date of passing the

above referred examination held by the Gujarat Public Service Commission (hereinafter referred to as ''the G.P.S.C.) and accordingly they are not

liable to be reverted. For the purpose of appreciation of the rival contentions and appreciating the subsequent developments after filing this Special

Civil Application, the facts may be stated in short.

Petitioner No. 1 - B.P. Chauhan was recruited as a Peon on December 20, 1960 in the Office of the Director of Ports and by order dated

February 24, 1961 he was appointed to officiate as a Junior Clerk, temporarily until further orders against the existing vacancy as he was qualified

and eligible to be appointed to the said post. He was then placed in the Selection Grade and promoted as Senior Clerk on October 29, 1979.

After this petition was filed on November 19, 1979 the Gujarat Maritime Board was established under the Major Ports Act and the grievance of

the petitioner No. 1 are mostly resolved. His seniority has been fixed at Sr. No. 36 in the Seniority List and was promoted as Head Clerk with

effect from July 20, 1988. Petitioner No. 2 - J.S. Patel was appointed as Junior Clerk on June 17, 1971 and was placed in the Selection Grade on

April 1, 1976 and promoted as Senior Clerk on October 20, 1977. He has however voluntarily retired from service on October 1, 1983 Even

though he has retired, he has asserted his rights so that he may get other service benefits.

The State of Gujarat came into existence on May 1, 1960 on bifurcation of bi-lingual Bombay State and the Office of the Director of Ports was

established at Ahmedabad. After the formation of the State of Gujarat, Government of Gujarat issued various Government Resolutions for the

recruitment of clerks and other such Class III services, by Government Resolution No. A SC 20269-B, dated November 21, 1960, the

Government of Gujarat in supersession of the previous Government Resolutions regarding the recruitment of the Clerks, Junior Assistants, Typists

Steno-typists, Stenographers Gr. I and Gr. II, implemented and Scheme for the recruitment of the above cadres in the Government Departments

and other Head Offices as specified in Schedule ''B'' to the Resoluiion. lor that purpose the Government has also considered the Bombay State.

Political and Service Department Resolution dated September IS. 1952. It is also directed in the Government Resolution dated November 21,

11960. that from May I. 1960 and after that the Head of the Departments and the offices specified in Schedule ''B'' should not appoint the clerks

or other categories of the employees specified above except on temporary basis and on the condition that such employees will be replaced by

candidates selected by the G.P.S.C. By that Government Resolution the specified departments and the Head Offices were placed within the

purview of the G.P.S.C. In the Schedule the Office of the Director of Ports was not included and, therefore, the Office of the Director of Ports

was not placed within the purview of the G.P.S.C. It is also clear that by that Government Resolution previous Government Resolutions were

superseded and, therefore, the previous Government Resolutions by which the recruitment of the clerks in the Office of the Director of Ports was

covered, did not govern the recruitment of the clerks in that department. The Centralised Recruitment Scheme for ministerial posts and particularly

for posts of clerks in District and Regional Offices of different departments was promulgated by Government Resolution No. RAC-1062-F,

General Administration Department, Government of Gujarat, dated January 21, 1963 and by that Government Resolution the scheme for

centralising in the recruitment of clerks in District and Regional Offices of various departments, which were not within the purview of the G.P.S.C.

was implemented. Centralised Recruitment Scheme also provided for temporary employment and replacement of such temporary employed clerks

by regular appointed clerks under the Scheme. It is not the case of either of the parties that the Centralised Recruitment Scheme was applicable

and, therefore, it is not necessary to consider the details of that Scheme. It is not contended by the respondents that the recruitment of the clerks

was governed by that Scheme. On the contrary the contention, as stated in the affidavit-in-reply filed by Mr. P.J. Jadeja, Administrative Officer, is

that the recruitment of the clerks in the Office of the Director of Ports at Bombay was within the purview of the Public Service Commission. It is

also admitted position that the Office of the Director of Ports is a State level Office and not a District or Regional Office. The Office of the Director

of Ports is situated at Ahmedabad. The Government Resolution dated January 21, 1963, was modified and the Government sanctioned the revised

scheme by Government Resolution dated July 9, 1964 and it was specified that the recruitment of the clerks in District and Regional Offices of all

departments which were not within the purview of the Gujarat Public Service Commission may be made as per the said Scheme It is not necessary

to consider the details of the Centralised Recruitment Rules for the purpose of this petition After the Government Resolution dated November 21,

1960 the Government issued another Government Resolution Addendum No. ASC 1063/14523-A, dated October 28, 1963 by Which the Office

of the Director of Ports. Ahmedabad. was added in Appendix ''B'' to the Government Resolution, General Adminisiranon Department No. ASC-

2260/ B, dated November 21, 1960, by which the Scheme for the recruitment to the post of Junior Assistants. Clerks, etc. in the departments of

secretariat and offices of the Heads of Departments, etc. at Ahmedabad was specified. The Office of the Director of Ports, Ahmedabad, being

office of the Head of Department, was added in Appendix ''B'' to the aforesaid Govt. Resolution but it was not specifically stated that the Scheme

will be applicable from 1-5-1960. Before the Government Resolution dated October 28, 1963 was issued and Schedule ''B'' was amended, both

the petitioners were already appointed as Clerks in 1961. The Director of Ports considered that the recruitment of the clerks in that department

also came within the purview of the Gujarat Public Service Commission from May 1, 1960, in view of the Government Resolution dated October

10, 1963 arid, therefore, issued the Circular dated February 19, 1964, directing the clerks and typists appointed by that office after May 1, 1960

that it was in their interest to get through the test by the Public Service Commission to continue in the service and their services could be continued

subject to their passing the G.P.S.C. examination. They were also advised to pass through the examination before the G.P.S.C. selectees were

posted in that department. They were also informed that not more than two trials will be afforded and in case of repeated failure, they will be

replaced by the candidates selected by the Public Service Commission. Such clerks and typists were also reminded by another Circular dated

September 21, 1964. Petitioners did not appear in the test by the Public Service Commission possibly because they were asserting their right to

continue in the service as they were regularly appointed by the competent authority. It also transpires that the department also did not take it

seriously and the G.P.S.C. selectees were not posted vice the petitioners.

The Government with a view to regularise the appointments between May 1, 1960 and November 20, 1960 issued Government Resolution No.

VPY/1170-A, dated January 25, 1970 and directed to regularise the appointments of the clerks and other such employees appointed during that

period by the offices specified in the list, the Office of the Director of Ports is also included in that list. The appointments by that office during May

1, 1960 and November 20, 1960, made under certain circumstances were regularised. It appears that the office of the Director of Ports was

included in that list as the Government Resolution dated November 20, 1960, was issued in supersession of previous such Government

Resolutions and in that Government Resolution the Office of the Director of Ports was not included for the purview of the Public Service

Commission. This is however, not very relevant for the purpose of the present dispute as the petitioners were appointed as clerks in the year 1961

and not during the period specified in the aforesaid Government Resolution.

Thereafter the Gujarat Non-Secretariai Clerks. Clerk-Typists and Typists (Recruitment) Rules, 1970 and the Gujarat Non-Secretariat Clerks,

Clerk-Typists and Typists (Direct Recruitment Procedure) Rules. 1970 were enacted by the Governor of Gujarat under proviso to Art 309 of the

Constitution of India, on April 17, 1970 Rule 29 of the Gujarat Non-Secretariat Clerks. Clerk-Typists and Typists (Direct Recruitment

Procedure) Rules, 1970 provided for the regularisalion of the cases referred to in Sub-rule (1) Clause (a) of the said Rule It specificallv provides

that the persons initially recruited otherwise than through the Gujarat Public Service Commission or the Centralised Recruitment Scheme as Clerks.

Clerk-typists or Typists in the Offices to which the statutory rules apply and who had rendered not less than 2 years'' continuous service as Clerks.

Clerk-typists, Typists on 31-12-1968, and who continued in Government Service on the date of the Notification shall be required to appear at the

special interview and/or special typing test to be held for them for their selection for appointment to the post of Clerk, Clerk-typist or Typist, as the

case might be. Rule 30 of the said Rules provides that in the case of the candidates who were eligible for concession specified in Rule 29. their

allotment and seniority should be determined in accordance with the orders that might be issued by the Government in that behalf after bringing into

force the said Rules. It appears from the affidavit of Mr. Jadeja. Administrative Officer that the said Rules were made applicable to the Office of

the Director of Ports and that fact is not controverted by the petitioners. Acting under the powers conferred upon the Government by Role 30 of

the said Rules, the Government issued Resolution No. Bharat/ll/70K dated September 1, 1970 setting out the instructions regarding the

determination of seniority and allotment of the candidates regularised under Rule 29 of the said Rules. By that Resolution the Government directed

that the allotment and seniority of the candidates belonging to the categories specified in Rule 29 of the Rules should be determined as set out

therein. Under paragraph 2 of the said Resolution, such of the candidates as were selected for the posts of Clerks, Clerk-typists and Typists under

the said Rules as belong to the categories specified in Sub-rule (1) and Clause (a) of Sub-rule 6 of the Rule 29 of the said Rules and who were in

Government service should be continued as regular recruits from the date of their allotment and/or regular appointment, and inter se seniority of

these candidates should be determined according to their ranks in the select list prepared as per Rule 18 of the Rules. The Rules were followed by

the Resolution dated April 15, 1971 which directed that the seniority of such candidates as were selected for the posts of Clerks, Clerk-typists

and Typists under the Rules and as belonging to the categories specified in Sub-rule (1) and Clause (a) of Sub-rule 6 of Rule 29 of the Rules

should be determined from April 17, 1970, as if their date of allotment and/or appointment is April 17, 1970 irrespective of whether they were in

service or not. Directions were also issued prescribing the manner in which the common seniority list in order of merit should be prepared. This

Circular dated April 15, 1971 is impugned by the petitioners asserting that they were never irregular appointees but were regularly appointed and

inspite of that under the erroneous directions given by the first respondent, their services are regularised as and from April 17, 1970 on the

assumption that the petitioners were not appointed regularly.

The contention of the petitioners is that when they were appointed, the clerks in the Office of the Director of Ports were neither required to pass

through the test conducted by the Gujarat Public Service Commission nor they were covered by the Centralised Recruitment Scheme and the

Heads of the Departments had power and authority to select and appoint them and accordingly they are regularly, legally and validly appointed

clerks and can never be considered to be irregularly appointed clerks. According to the petitioners, the Government Resolution dated November

21, 1960 superseded all the previous Government Resolutions and the Office of the Director of Ports was established after the formation of the

State of Gujarat and they were not governed by any previous instructions or Government Resolutions issued by the Government of Bombay. It is

also contended that the impugned resolution is illegal, unjust, contrary to Articles 14 and 16 of the Constitution of India and, therefore, void.

According to the respondents, as per the affidavit of Mr. Jadeja, Administrative Officer, the judgment of the Supreme Court in the case of P.C.

Patel and Others Vs. T.H. Pathak and Others, , is not applicable to the present case in view of the fact that the Director of Ports was within the

purview of the Ex-Bombay Public Service Commission immediately before May 1, 1960, whereas the Directorate of Civil Supplies was not within

the purview of the Public Service Commission. In view of this contention of the respondents, it should be examined as to whether the recruitment

of clerks in the Office of the Director of Ports was governed by any such set of Rules or recruitment could be only through the Public Service

Commission. A Division Bench of this Court (Coram: B.J. Divan, C.J. and D.A. Desai, J.) (as they then were), had the occasion to consider the

provisions of Rules 138 and 139 of the Bombay Civil Services (Classification and Recruitment) Rules, 1939. It is observed that the said Rules are

the Administrative Rules, even though subsequently the Rules were amended by Rules framed under Article 309 of the Constitution of India on

May 22, 1957. It would follow that original Rules of 1939 by reason of incorporation would get the statutory status. However, so far as the

recruitment to the post of Clerks, Clerk-typists and Typists in the offices other than the secretariat in the Bombay were concerned, the offices

brought within the purview of the Public Service Commission by virtue of Rule 139 were required to be the offices of the State Government in

Greater Bombay. It is also observed that it is true that in 1957, the office of the Director of Civil Supplies (Accounts) was a separate Directorate

and was located in Greater Bombay, but after setting up of the new State of Gujarat, a new Directorate of Civil Supplies (Accounts) was set up

and the Head-quarter was located at Ahmedahad. After May 1, 1960, on which date the State of Gujarat was set up. the Directorate ceased to

function from Greater Bombay, and therefore, it is obvious that it ceased to be within the purview of the Public Service Commission. The Division

Bench relied upon the decision of the Supreme Court in the case of Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and

Others, , wherein it is observed ""in terms that Rule 139 which was specifically made with reference to Government Offices in Greater Bombay,

became wholly inapposite and incongruous and ceased to be applicable in the new set up"". After the State of Gujarat came inio existence The

Division Bench also observed that it was, therefore, necessary for the State Government to issue the notification of November 21, 1960 bringing

within the purview of the Gujarat Public Service Commission, with effect from May 1, 1960, all recruitments to the posts of Clerks. English

Typists, English Steno-typists, English Stenographers and also posts of Gujarati Typists, Gujarati Steno-typists and Gujarati Stenographers in

connection with the different offices mentioned in Appendix ''B'' to the Rules. It is not even urged by the respondents that the Office of the Director

of Ports was the distinct office even during the bilingual Bombay State or prior to that. The above referred judgment applies in all fours of point of

consideration in the instant case and it would be held that on formation of the State of Gujarat, the Office of the Director of Ports at Ahmedabad

was not under the purview of the Public Service Commission. Even though the Notification dated November 21, 1960 was issued. Office of the

Director of Ports was not included in it and it was brought within the purview of Public Service Commission only by Government Resolution dated

October 28, 1963, Government Resolution dated November 21, 1960 was specifically issued in supersession of the previous Government

Resolutions. For that reason also it should be held that the Office of the Director of Ports was not brought within the purview of the Public Service

Commission for the recruitment of the clerks, clerk-typists, typists, etc. It is also not the contention of the respondents that the Centralised

Recruitment Scheme for the purpose of recruitment of the clerks, clerk-typists, typists, etc. was applicable to the Office of the Director of Ports.

In view of the above, it is to be considered as to whether the recruitment of the petitioners was irregular. For the purpose of bringing within the

purview of the provisions of Rule 30 of the statutory rules of April 17, 1970 regarding the fixation of the seniority, it must be found that the cases of

the petitioners were required to be regularised. The relevant words in the relevant provisions of Rule 29 are ""the following cases shall be

regularised in the manner shown below"" which indicate that the initial appointment should be irregular. This point was also under consideration of

the Division Bench in Special Civil Application No, 767 of 1974 in the case of Smt. T.H. Pathak (supra) the Division Beach has observed that

But the emphasis is on the words ''shall be regularised'', lt is but common sense to say that if there is nothing irregular in the initial appointment, the

Government employee concerned is not required to be regularised"". In that case it was clearly held that the appointments were not irregular and

were not required to be regularised. The said matter was taken up by the Government to the Supreme Court and the Supreme Court in the case of

P.C. Patel and Others Vs. T.H. Pathak and Others, agreed with the view expressed by the Division Bench of this Court. Referring to Rule 29 of

the Gujarat Non-Secretariat Clerks. Clerk-typists and Typists (Direct Recruitment Procedure) Rules, 1970, it is observed by the Supreme Court

that when appointments of the petitioners were not irregular, the State Government erred in thinking that their service was governed by Rule 29(1)

(a). Referring to the provisions of Rule 30 the Supreme Court observed that the said Rule was not applicable to the clerks of the Office of Director

of Civil Supplies (Accounts) and therefore, it was not permissible for the authorities concerned to determine their allotment and seniority under that

rule. The attempt by the respondents to distinguish the judgment in the case of Smt. T.H. Pathak (supra) is nothing but a futile exercise. The

decision of the respondents to fix the seniority of the petitioners as if they are in continuous service from April 17, 1970 in accordance with Rules

29 and 30 of the said Rules is not legal and proper and deserves to be set aside.

During the course of about 9 years of the pendency of this petition in this Court, it appears that the respondents accepted the contentions of the

petitioners and regularised the services of the petitioner No. 1 - B.P. Chauhan, and his seniority is accordingly fixed. He is even promoted as Head

Clerk from July 20, 1988. Petitioner No. 2 - J.S. Patel, voluntarily retired from service on October 1, 1983. However, he is entitled to the

consequential benefits.

The submissions made by Mr. M.S. Shah, learned Counsel for the respondent No. 4 are required to be considered. Mr. Shah submits that the

petitioners appeared for the regularisation of their services in the test held by the Public Service Commission under the Rules and therefore, they

are estopped from raising the above contention and specially the contention about the regular appointment. "" It is difficult to accept this submission.

It is quite possible that the petitioners might have thought not to take any chance and appear in the test by the Public Service Commission for the

regularisation of the services, but that by itself does not deprive them of their legitimate right. Mr. Shah also made grievance that he should have

been given more time to get instructions. The matter being very old, it was adjourned previously at the request of Mr. Shah and, therefore, he

cannot make any legitimate grievance for the adjournment. This submission should not have been recorded but, as Mr. Shah specifically stated, it is

recorded in the judgment. The belated oral submission that all other clerks whose seniority is likely to be affected deserves to be rejected as the

main grievance of the petitioner is against the Circular.

In the case of Smt. T.H. Pathak (supra) Divsion Bench of this Court had considered the seniority of the petitioners of that case, bat the

Supreme Court did not approve the directions by the. High Court to compute the seniority on the basis of their service with effect from the

respective dates of joining the service as Clerks. In view of the Judgment of the Supreme Court, the State Government may re-examine the

question of fixing the seniority of the petitioners and take appropriate action Inview of the directions of the Supreme Court and the facts and

principles governing the service conditions of the petitioners being practically same, this Court should pass order in terms of the order passed by

the Supreme Court in the aforesaid decision.

In the result, the decision of the respondents to conside the seniority of the petitioners from April 17, 1970 and the impugned order of reversion

dated November 15, 1979 (Annex. ''B'') are quashed and set aside. The respondents should examine the question of seniority of the petitioners, if

at all not considered yet, and take appropriate action to ameliorate their lot as temporary employees. Rule is made absoulte accordingly to the

aforesaid extent, with no order as to costs.