Shambhuprasad Sitaram Mahant vs State of Gujarat

Mr. S.G. Shah, J.(Oral)—Heard learned advocate Mr. N.K. Majmudar for the Petitioner and learned Assistant Government Pleader Ms. Amita Shah for the Respondent - State.

Petitioner herein has challenged the judgment and order dated 7.2.2011 by Gujarat Civil Services Tribunal, Gandhinagar in Appeal No.194 of 2007. In such appeal, Petitioner has challenged the decision of the Respondents refusing to consider his service as a continuous service. In addition to such basic relief against the impugned judgment, the Petitioner has also prayed for appropriate writ or direction that Petitioner should be declared entitled to have his seniority position from his initial date of appointment in Revenue Department and thereby, direction to the Respondent authorities to consider seniority of the Petitioner from his initial date of appointment i.e. 27.6.1966 and to give benefit of deemed date and other consequential benefits i.e. retirement benefits treating the initial date of appointment of the Petitioner as 27.6.2016.

It is undisputed fact that Petitioner has been appointed as Senior Clerk in Revenue Department on 27.6.1966 by regular centralised selection process of recruitment by the State Government. It is also undisputed fact that Petitioner has cleared the pretraining service examination on 14.6.1967. Therefore, one thing is clear and certain that on date of regular centralised selection process, and even on the date of pretraining service examination, there was post available in the Revenue Department and on such post Petitioner has been appointed after following due process of law and there is no complaint whatsoever either regarding his selection or regarding his services as such.

However, unfortunately by an order dated 9.6.1969, Petitioner has been relieved from his services as a Junior Clerk from the Revenue Department of the State Government. Though such order is not produced on record by either side, details of such order is reproduced in the impugned judgment by the Tribunal on internal page No.10 of the impugned judgment (page No.63 of the petition) in Annexure ''F'' Such order dated 9.6.1969 as reproduced in the impugned judgment probably discloses that pursuant to closing of post of temporary clerk from 6.6.1969, Petitioner has been relieved from his service on 9.6.1969 AOH. Therefore, practically, the stand taken by the Respondents is to the effect that Petitioner has been relieved from the Revenue Department and, therefore, his period of service with the Revenue Department which is from 27.6.1966 to 9.6.1969 is not to be treated for any purpose while extending him any service benefit or pensionary benefit in any manner whatsoever. It is also undisputed fact that immediately thereafter on 11.6.1969 service of Petitioner was allocated to Respondent No.3 herein - Employees State Insurance Scheme and he assumed his duties with Respondent No.3 on 13.6.1969 i.e. just within four days from the date of so called termination of his service with Revenue Department.

Thereafter, when the Petitioner has superannuated, at the time of his retirement his service was not considered for all financial benefit from 27.6.1966 but it was counted only from 30.6.1969. Petitioner has submitted an application on 19.1.2004, copy of which is at Annexure ''A'' with the petition. By such letter, Petitioner has categorically conveyed to the Respondents that though he was released AOH on 9.6.1969, he received a letter dated 11.6.1969 from the Collector, Vadodara on 12.6.1969 and as instructed by Mamalatdar, Karjan, he has joined his services with ESI scheme on 13.6.1969 at Vadodara with Kashi Vishwanath Dispensary. He has specifically conveyed in such letter that his break was mainly because of administrative reasons and, therefore, he relied upon the Government Resolution dated 15.9.1997 to consider such break as leave and to consider his period of service as continuous services even for seniority and for all other benefits. He has also disclosed that as on 8.6.1969, there was in all 62 leave balance in his account and, therefore, he requested to consider the break of 4 days from 9.6.1969 to 12.6.1969 as leave and to consider his services as continuous services.

However, by their letter dated 28.4.2007, by relying on the Government Resolution dated 18.4.1978, the Respondents have denied the benefits as requested by the Petitioner and refused to extend any such benefit to him. Therefore, both the Government Resolutions under reference are material to be scrutinized and interpreted with reference to the issue raised in this petition.

Copy of Government Resolution dated 15.9.1971 is at page 24 on record as part of Annexure ''A.'' The perusal of such Government Resolution makes it clear that the purpose of such Government Resolution is quite clearly disclosed in the title of the Government Resolution as subject that it is for considering the break period in service as Earned Leave. Whereas, the text of the Government Resolution is also quite clear wherein it is categorically stated that out of the selective candidates of Centralised Recruitment Process who are appointed in particular department which sometimes allocated to other department because of nonexistence of particular post and it results into break in their service and, therefore, to resolve such break in service, there was Government Resolution dated 2.12.1968 to consider such break as extra ordinary leave. Now, by such Government Resolution dated 15.9.1971, the previous Government Resolution dated 2.12.1968 is modified by making only one change that if such break is more than 36 months, then, such break should not be considered as extra ordinary leave. Thereby, if break in service is less than 36 months, then the period in break of service is to be treated as extra ordinary leave. It is undisputed fact that in the present case, such break is only for four days i.e. from 9.6.1969 to 30.6.1969. The Government Resolution dated 15.9.1971 does not make any difference so far as seniority or considering the service as continuous services and pension. Thereby, it does not specifically clarifies that in such cases, the appointment or allocation of the employee in other department is to be treated as fresh appointment as it is observed by the Division Bench of this High Court in the case of S.S. Thakore v. State of Gujarat reported in 1992(1) GLR 68. Thereby, in such reported judgment, the Court has added words which are not in the Government Resolution itself. When there is reference of Government Resolution dated 2.12.1968 in such Government Resolution dated 15.9.1971 neither of the parties have deemed it fit to produce such Government Resolution on record and, more particularly, when Respondents and Tribunal has relied upon the Government Resolution dated 15.9.1971 and 18.4.1978, we have to consider this Government Resolution only. So far as Government Resolution dated 18.4.1978 is concerned, copy of which his produced at Annexure ''D'' so also relied upon by the Respondents when it is annexed with their affidavit in reply, goes to show that practically it is for the class of employees who have asked for changing department on their own in addition to persons who are absorbed in some other department because of stopping of some projects where they were earlier appointed and serving as such. The bare reading of such Government Resolution dated 18.4.1978 makes it clear that there are mainly two provisions, one is for the employees who have asked for changing the department on their own request and second is for employees who are relieved from one department because of closing of the project or for any other reason and absorbed in some other department where there is vacancy. So far as first kind of employees are concerned i.e. who have prayed for change of department, the Government Resolution states that in case of such request, when any employee is allowed to transfer to the selected department by such employee, he should be placed as junior most in his cadre for the simple reason that in case of end of project or surplus employees in any department, the principle that last entered has to go first would apply and, thereby, if such employee who have been promoted to change the department are placed above regularly employed staff in their department, then, such regular employed staff may have to go out in case of closing of project or as surplus staff in that department since it would result into injustice to such regularly appointed staff. Such condition is legal and to be accepted without any comment but for the simple reason that it is not factual scenario in the present case and, therefore, practically, it is not relevant.

However, so far as second condition of the Government Resolution is concerned, the Government Resolution provides that whenever somebody is absorbed in different department after being surplus or relieved because of closing of particular project or post considering their long employment in previous department and, thereby, their difficulty to get the new job in any department then, they should be placed in the new department at the bottom of the seniority list of particular post and, thereby, they should be treated as junior most so that in case of surplus staff or closing of such new project, they may go first. But in such second provision, there is no restriction regarding seniority or considering their services as a continuous services. Therefore, the Government Resolution dated 18.4.1978 does not alter, modify or change the conditions which are there in Government Resolution dated 2.12.1968 so also 15.9.1971 wherein there is mere disclosure that such period of break is to be treated as extra ordinary leave.

As against that, the Petitioner is relying upon the decisions in the case between (A) Sunil H. Vyas v. District Collector, Kheda in appeal Nos. 371 to 374 of 1999 by the same Tribunal dated 2.7.2008 (B) Dineshchandra Babubhai Patel v. State of Gujarat in Special Civil Application No.2970 of 2001 with allied matters decided on 18.4.2009 and (C) Suresh A. Patel v. State of Gujarat in Special Civil Application No. 12240 of 2000 decided on 9.8.2004. The perusal of all three judgments make it clear that the issue has been dealt with in all these three judgments in detail by the different Courts and ultimately, it is held that even seniority of the Petitioners before such Court was regularized from the initial appointment and directions were issued to place them according to the seniority list and further directed to extend all consequential benefits arising therefrom in favour of the Petitioners. While doing so, the concerned Courts have relied upon the decision of Division Bench of this Court in the case between Safimiya G. Malek v. State of Gujarat reported in 1992(1) GLR 704 wherein it is observed that Rule of continuous officiation is to be adhered to and implemented.

However, in the present case, Petitioner has now retired and it is undisputed fact that he has never claimed his seniority in the present department during his total tenure of service. Therefore, there is reason to believe that though he has claimed deemed seniority in the present petition, he has not bothered to claim by agitating the same until he filed a representation on 19.1.2004. Otherwise also so far as seniority is concerned, both the Government Resolutions are quite clear that when person is absorbed in any other department, his seniority is to be treated as below the regular employees in same post and cadre in such department. Therefore, so far as deemed seniority is concerned, I am of the view that Petitioner is not entitled to such relief.

However, for the aforesaid facts, circumstances and discussion, the petition needs to be allowed partly so as to consider the services of the Petitioner as continuous services from 27.6.1996 till his superannuation mainly because his four days break was considered as extra ordinary leave by the department.

In view of above, this petition is partly allowed. Thereby, the Petitioner is to be considered as in continuous service right from 27.6.1996 till his date of superannuation and his pensionary benefit shall be calculated accordingly and shall be paid to the present Petitioner by the Respondents within four months from the date of receipt of Writ of this order.

Rule is made absolute to the aforesaid extent.

Direct Service is permitted.