Pravinchandra Shankerlal Riska vs State of Gujarat

S.R. Brahmbhatt, J.—The appellant, original plaintiff in Regular Civil Suit No. 233 of 1984 (hereinafter referred to as ''plaintiff'' for sake of brevity) has approached this Court u/s 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 14.11.2006 passed by the learned Principal District Judge, Rajkot in Regular Civil Appeal No. 63 of 2002, confirming the judgment and decree dated 19.10.2002 passed in Regular Civil Suit No. 233 of 1984 dismissing the suit of the appellant-plaintiff on raising following substantial questions of law:

(i) Whether an employee is entitled to seniority on his transfer in the same department, though having separate seniority, without his specific consent to loss of such seniority?

(ii) Whether an employee can be absorbed in the other cadre on a bifurcation of one cadre without giving an opportunity of option particularly when others are given such options?

The facts in brief leading to filing this appeal are set out as under.

As per the averments made in the plaint, the plaintiff was selected under Central Recruitment Scheme, which at the relevant time included recruitment to posts of all departments of State including the Medical Services. The plaintiff came to be appointed as Senior Clerk on 23.12.1968 under Collector, Jamnagar District, Jamnagar. As per say of the plaintiff in his plaint, the Collector, Jamnagar transferred plaintiff to M.P. Shah Medical College as Junior Clerk on 9.9.1977. In the year 1976 the colleges in the State were bifurcated from Health Services (Medical) of the State. It is the say of the plaintiff that services under Director of Medical education and Research was treated as separate from rest of the Health Service (Medical) and by this time, the plaintiff had been working in the combined unit of Heath Services (Medical) till 12.8.1976. The plaintiff on 21.7.1995 made request in the Director of Medical Education and Research for his transfer at any of the places. He was informed that his request would be considered after the academic year. The plaintiff sent reminders which was forwarded through Dean, M.P.Shah Medical College, Jamnagar to the Director, Medical Education and Research, Ahmedabad, to which, he replied on 6.9.1976 that there being no vacancy and his request cannot be acceded to. The plaintiff continued making representations on the same subject. The plaintiff received communication on 24.5.1978 that there was no vacancy available in the places he was asked for and is he willing to go in any other department of Medical Service and the plaintiff replied that he was willing to go there in other department. Accordingly Collector, Rajkot District vide letter dated 5.7.1978 advised the Collector, Jamnagar that he has o objection to absorb the plaintiff under him on the conditions mentioned therein mainly that he will have to forgo the right of seniority etc. The plaintiff accepted those conditions communicated to him vide letter dated 2.9.1978 and ultimately his transfer was permitted on 3.11.1978 i.e from Jamnagar District to Rajkot District. However, Government imposed condition on 5.6.1979 for transfer from Jamnagar District to Rajkot District mentioned therein and the plaintiff has consented those conditions and said consent was given by him to the Dean M.P.Shah Medical College by his letter dated 2.8.1979. In pursuance of the aforesaid conditions, the plaintiff was transferred and he has filed undertaking to this effect. This entire exercise came to be halted as the State in its letter dated 11.9.1980 ordered to cancel the previous order of the defendant by which it contained sanction for the transfer from Medical College Jamnagar to Collector, Rajkot district, Rajkot. It deserves to be noted at this stage that said cancellation has remained unchallenged on the part of the plaintiff. The plaintiff again started making representations for transfer. Ultimately, his request was accepted and he has been transferred to Rajkot on conditions. The plaintiff has challenged that he could not have been made to forgo the seniority as Government has delayed the transfer and therefore, he has suffered loss. The plaintiff cited some instances in the plaint in this respect. The trial Court framed the issues, which reads as under:

(1) Whether the plaintiff proves that he is entitled to be treated for the purpose of seniority from the date of his appointment dated 23.12.1968 and for promotion with all rights etc. as prayed for?

(2) Whether the plaintiff is entitled for all or any of the reliefs as prayed for?

(3) What order and decree?

The answers are as under:

(1) In negative.

(2) In negative.

(3) As per final order.

The trial Court after considering the facts on record came to the conclusion that suit merited dismissal and accordingly, dismissed the suit vide judgment and decree dated 19.10.2002.

As submitted hereinabove, the plaintiff preferred Appeal being Regular Civil Appeal No. 63 of 2002 challenging the aforesaid judgment and decree dated 19.10.2002 and the learned Appellate Judge also dismissed the Regular Civil Appeal No. 63 of 2002 and confirmed the judgment and decree dated 19.10.2002 passed in Regular Civil Suit No. 233 of 1984 by his judgment and order dated 14.11.2006. The present Second Appeal is arising out of the same judgment.

This Court has heard learned Counsel Shri Supehia for the appellant at length and perused the papers appended to the memo of Second Appeal.

It deserves to be noted that plaintiff''s claim for seniority from the date of his appointment and consequential benefits thereon is based upon his initial recruitment under Central Recruitment Scheme. The earlier request of plaintiff for inter district transfer has not been acceded and subsequent transfer of the plaintiff could be said to be of that of in the said department and therefore, he was not to loss his seniority, cannot be accepted. The transfer of plaintiff from M.P.Shah Medical College to K.I. Children Hospital, Rajkot on 8.12.1981 though can be said to be in the same department, but it was surely not in the same district. The internal district transfer carries with certain liability. The plaintiff has given up his right to seniority and requested his transfer. Once the plaintiff has given up his right to seniority and accepted the transfer, he has no right to reiterate the seniority afresh. The trial Court has therefore, dismissed the suit. The Appellate Court has also recorded that plaintiff once received the cancellation order of the earlier process and, repeated requested for transfer. It was also contended by the defendant that inter district transfer request was reconsidered with clear understanding on the part of the plaintiff that the seniority of the plaintiff would be counted from the date of joining in another department and as the plaintiff had already given his consent that he was required to forgo seniority, his request was reconsidered and the same conditions were also put in his transfer order and accordingly, he has accepted the transfer order and resumed his duties at his transferred place and therefore, in absent of consent alleged cannot be said to be believed by the Court as the seniority were maintained separately as per G.R dated 17.11.1980. In view of this, the Appellate Court has also held that the suit was rightly dismissed against the plaintiff.

The tenuous contention with regard to subsequent transfer without consent is the sole submission required to be answered but that itself is answered by the document of transfer order, which contained that plaintiff was transferred on a condition of his forgoing seniority. The plaintiff has accepted this transfer order and reported to his transferred place and thereafter raised contention about forgoing of the seniority, which on the face of it would not be justified. In addition to this, the G.R pressed into service by the defendant and accepted by the Court also cannot be lost sight of the separate seniority list to be maintained. In view of this, this Court is of the view that no substantial questions of law is raised and appeal therefore, deserves to be rejected and is accordingly rejected.

ORDER IN CIVIL APPLICATION NO. 15353 OF 2007:

In view of the order passed in Second Appeal, no order in Civil Application.