IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5182 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= PRADIPBHAI VITTHALBHAI TADVI & 6 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance :
MR PUSHPADATTA VYAS for Petitioner(s) : 1 - 7. GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 26/03/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By way of this petition under Article-226 of the Constitution of India, the petitioners working in the Office of Collector, Vadodara as Clerks have prayed for the following reliefs :
“11.
(A) To issue a writ of mandamus or any other appropriate writ order or direction for quashing and setting aside the change in the seniority list at Annexure A made by the respondent no.2 dated 31/05/2000.
(AA) Your Lordships be pleased to quash and set aside the orders at annexure “H” Colly. qua excluding the seniority while condoning the break in service.
(B) During the pendency, admission and final disposal of this petition Your Lordship be pleased to stay the execution, implementation and operation of the list made by the respondent no.2 at Annexure A on 31.05.2001 qua change in the seniority or promotion given thereof.
(C) to grant any other and further relief/s deemed fit and proper in the fact and circumstance of the case.”
2. Facts relevant for the purpose of deciding this petition can be summarized as under -
2.1) The petitioners were appointed as Clerks in the year 1984 by respondent no.2 and at present also they are working under respondent no.2 as Clerks. It is the case on behalf of the petitioners that past almost 17 years they are serving as Clerks and are qualified and eligible for the promotions as per the seniority list dated 20/9/1999. It is also their case that they have passed their preliminary training exams, sub-
service departmental exams and other exams time to time and in most of the cases at the very first attempt. In the seniority list dated 20/9/1999 the petitioners were at Sr.Nos.386, 387, 388, 389, 390, 392 and 393 respectively. It is their case that initially for a period of more than 10 years from the date of their appointment, the seniority list was being maintained properly and was also published time to time as per the directions issued by this High Court in various petitions. It is their case that after many years from the date of their appointment when time came for the authorities concerned to promote them on a higher post, changes were effected in the seniority list adversely affecting the petitioners as a result of which juniors to the petitioners were promoted. It is this illegal and arbitrary action on the part of respondent no.2 which has been voiced in the present petition. It is also their case that the seniority of the petitioners was maintained as is clearly reflected in the seniority list published on 28/12/1992, 12/4/1996 and 23/9/1996 which also includes Final Seniority List. Record reveals that after their appointments on 15/11/1984 the posts were closed on 31/12/1988 after office hours and all the petitioners herein were reverted by order dated 5/1/1989 at a different place. However, record also reveals that within 13 days thereafter i.e. on 13/1/1989 the petitioners were reappointed on the very same posts. This is an undisputed fact. It appears that the authorities clarified at the time of reappointing the petitioners that the whole of the previous service would be counted as continuous for the purposes of leave, salary and pension except for the purpose of seniority.
Thus, it is this action on the part of the respondent no.2 in disturbing the seniority of the petitioners for the simple reason that each of the petitioners vide order dated 5/1/1989 was relieved before the office hours on 9/1/1989 and thereafter were reappointed and resumed duties on 13/1/1989. It is this break of 5 days from 9/1/1989 to 13/1/1989 has resulted in disturbing the seniority of the petitioners.
It is at this stage that the petitioners preferred the present petition and have prayed that they may be placed as per the seniority list which was maintained till 1999.
I) Contentions of the petitioners :
that the petitioners’ seniority was maintained by the respondent no.2 as is clearly reflected in the seniority published on 28/12/1992, 12/4/1996 and 23/9/1996 which also includes Final Seniority List. He submitted that the action on the part of the respondents is violative of Article-14 of the Constitution of India. He submitted that the petitioners preferred representations and tendered their objections before respondent no.2 but, there was no response at the end of respondent no.2 and, therefore, the petitioners were left with no other option but to prefer this petition. He submitted that the break in service for a period of 5 days was in the year 1989. The break in service was condoned for all purposes but according to the respondents not for the purpose of seniority. He submitted that in 1989 when the petitioners were re-appointed and were permitted to resume their duties, this aspect was not in the mind of the respondent authorities while preparing seniority lists dated 28/12/1992, 12/4/1996 and 23/9/1996 and all of a sudden, in the seniority list dated 31/5/2001 the petitioners have been placed lower in rank and the juniors have been promoted. When time came to consider the petitioners for the purpose of promotion, such illegal action was taken which has caused grave prejudice and injustice to the petitioners.
Mr. Vyas also submitted that by placing the petitioners in their original position no other employee is likely to be affected because all those persons are already promoted long time back. So far as the present petitioners are concerned, if they are placed as per their original seniority, then in that case the authorities may consider promoting the petitioners from deemed date.
II) Per contra, the learned AGP Mrs. V.S.Pathak appearing for the respondents vehemently submitted that there is no merit in this petition and the same deserves to be rejected. Mrs.Pathak submitted that as the issue is of seniority, the petitioners ought to have joined all those persons who figure in the seniority list as any orders which this court may pass, are likely to affect the other employees. Mrs.Pathak has relied on a Government Circular No.SNR 1078/1605 dated 18/4/1978 of the General Administration Department which provides that in the event of closure of posts, the surplus employees are required to be adjusted or absorbed on other posts and the seniority of such person is to be determined and fixed after the persons who are already working in the respective cadre and accordingly the seniority of the petitioners has been fixed which is legal and proper. Mrs.Pathak learned AGP has relied upon the affidavit- in-reply which has been filed by respondent no.2, Collector, Vadodara. In the affidavit-in-reply respondent no.2 has taken the following stand -
“15. I further say that while publishing the Preliminary List by this office on Dt.20/9/99 objections were invited and disposed off. And accordingly the seniority of the petitioner Shri P.V.Tadvi, Shri M.A.Damor, Shri J.K.Damor, Shri K.J.Pargi, Shri B.P.Damor, Shri K.A.Ttaviyad, and Shri G.G.Rathava was considered on the basis of their reversion and re-appointment in service. The details of the same are as under.:
Details of each Petitioner :
A. I further say that upon SHRI P.V.TADVI reverting back vide this Office Order No.MHM/NMK/Dy. Mam/2/89 Dt. 5/1/1989 was relieved before the Office House on 9/1/1989 and thereafter, upon his reappointment vide this Office order No. MHM/NMK/Ka/2/89 Dt.13/1/89, he has resumed on Dt.13/1/1989 after office hours. Thus, for the deficit of five days from Dt.9/1/1989 to Dt.13/1/1989 was ordered by this office that whole of the previous service to be counted as continuous for the purposes of leave, salary and pension, except for the purpose of seniority vide this office order No.MHM/B/Vashi1655/91 dtd. 31/5/91 from Dt.9/1/89 to Dt.13/1/89.
B. I further submit that upon SHRI M.A. DAMOR reverting back vide this Office Order No. MHM/NMK/Dt.Mam/2/89 Dt.5/1/1989, he was relieved on Dt.6/1/1989 and upon his reappointment vide order Dt.13/1/89, he has resumed the duty on Dt.18/1/89 before the office hours. Thus, for the deficit of 12 days from Dt.6/1/89 to Dt.17/1/89 in the services of Shri Damor, it was ordered by this office to be counted as continuous for the purposes of leave, salary and pension, except for the purpose of seniority vide this office order No.MHM/B/Vashi/2540/89 dtd.24/7/89 and MHM/B/Vashi/2296/90 Dt.13/8/90 from Dt.6/1/89 to Dt.17/1/89.
C. I further say that upon SHRI J.K.DAMOR reverting back vide this Office Order No.MHM/NMK/Dy.Mam/2/89 Dt.5/1/89, he was relieved on Dt.6/1/89 before the office hours and upon his reappointment vide order Dt.13/1/89, he was resumed the duty on Dt.16/1/89 before the office hours. Thus, for the deficit of 10 days from Dt.6/1/89 to Dt.15/1/89 in the service to be counted as continuous for the purposes of leave, salary and pension, except for the purpose of seniority vide this office order No.MHM/B/Vashi/2541/89 dtd.24/7/89 and MHM/B/Vashi/2295/90 Dt.8/8/90 from Dt.6/1/89 to Dt.15/1/89.
D. I further say that SHRI K.J.PARGI reverting back vide this Office Order No.MHM/NMK/Dy.Mam/ 2/89 Dt.5/1/89, he was relieved on Dt.9/1/89 before office hours andupon his reappointment vide order No.MHM/NMK/Ka/2/89 Dt.13/1/89, he has resumed the duty on Dt.13/1/89 after the office hours. Thus, for the deficit of 5 days from Dt.6/1/89 to Dt.17/1/89 in his services, it was ordered by this office by sanctioning the leave of five days and that the whole of the previous service to be counted as continuous for the purposes of leave, salary and pension, except for the purpose of seniority vide this office order No.MHM/B/Vashi/843/89 Dt.11/4/89 and MHM/B/Vashi/1216/90 Dt.21/5/90 from Dt.9/1/89 to Dt.13/1/89.
E. I further say that upon SHRI B.P.DAMOR reverting back vide this Office Order No.MHM/NMK/K/KA/2/89 Dt.5/1/89, he was relieved on Dt.6/1/89 and upon this reappointment vide order No.MHM/NMK/K/KA/ 2/89 Dt.13/1/89, he has resumed the duty on 16/1/89 before the office hours. Thus, for the deficit 9 days from Dt.7/1/89 to Dt.15/1/89 in the services of Shri Damor, it was ordered by this office that whole of the service to be counted as continuous for the purposes of seniority vide this office order No.MHM/B/Vashi/2211/90 Dt.13/8/90 from Dt.7/1/89 to Dt.15/1/89.
F. I further say that upon SHRI K.A.TAVIYAD reverting back vide this Office Order No.MHM/NMK/Dy.Mam/2/89 Dt.5/1/89, he was relieved on Dt.11/1/89 before the office hours, and upon his reappointment vide order No.MHM/NMK/KA/2/89 Dt.13/1/89, he has resumed the duty on Dt.11/1/89 after the office hours. Thus, there was a deficit of 3 days from Dt.11/1/89 to Dt.13/1/89 in his service, it was ordered by this office that the whole of the previous service to be counted as continuous for the purposes of leave, salary and pension, except for the purpose of seniority vide this office order No.MHM/B/Vashi/2222/89 Dt.29/6/89 and MHM/ B/Vashi/17/91 Dt.28/1/91 from Dt.11/1/89 to Dt.13/1/89.
G. Upon SHRI G.G.RATHAVA reverting back vide this Office Order No.MHM/NMK/Dy.Mam/2/89 Dt.5/1/89, he was relieved on Dt.7/1/89 before the office hours, and upon his reappointment vide order N.MHM/NMK/DA/2/89 Dt.13/1/89, he has resumed his duty on Dt.17/1/89. Thus, there was a deficit of 10 days from Dt.7/1/89 to Dt.16/1/89 in his service. There is a provision to join the said deficit period for the purposes of pay and pension, except the seniority.
16. The petitioners were reverted back from their positions, and upon giving them the reappointment, as per the provisions contained in the Government Circular No.S.N.R.1078/1605 Dt.18/4/78 of General Administration Department, in the event of closure of posts, the surplus employees are required to be adjusted or absorbed on other posts and the seniority of these persons is to be determined or fixed after the persons who are already working in the respective cadre and accordingly, the seniority of the petitioners has been fixed which is proper and legal.
17. The Seniority List Dt.31/5/2000 published by this office was prepared as per the prevailing rules and guidance; and there fore the demand of the petitioner seeking interim injunction order is not deserving any consideration and required to be dismissed.
18. The Seniority List dtd.31/5/2000 has been prepared keeping in view the prevailing rules/guidance as well as keeping in view the various decisions rendered by the Hon’ble Gujarat High Court/Supreme Court from time to time which is legal and as per rules and the same is not liable to be accepted.”
III) Having heard the learned counsel for the respective parties and having perused the materials on record, I shall now proceed to analyze the contentions of both the sides.
3. It is no doubt true that there was a break in service for a period of 5 days way back in the year 1989. However, the authorities concerned, decided to give the continuity in service which means that the service continued as if there was no break at all. It is evident from the affidavit-in-reply filed by the then Collector, Vadodara that the period of break was counted as continuous for the purposes of leave, salary and pension except for the purpose of seniority. I am of the view that the break having been condoned, it ceased to exist and therefore, the service became continuous. When there is a Leave Without Pay, there cannot be any question of discontinuation of service or reappointment. The reliance which has been placed on the Government Circular of 1978 as reflected from the affidavit-in- reply, is wholly misplaced and contrary to even settled position of law. By no stretch of imagination could it be said that the break was condoned and continuity of service was granted only for the purpose of leave and salary. It is a continuity in service for all purposes including the question of seniority.
On very important aspect which I would like to highlight at this stage is that it is not the case of the respondent authorities that on the posts in question being suspended or abolished for couple of days, the petitioner were declared as surplus staff and were absorbed and or accommodated in any other cadre. Had it been such a case such surplus staff would be given seniority below existing employees in such cadre. In other words, the petitioners could have been treated as fresh recruits in the cadre getting date of their seniority from the date of their entry in the cadre. In the present case, the cadre has not changed and has remained same with continuity of service for the purpose of pay, pension and leave. This is the reason why I hold that policy of the Government declared in the circular dated 18.04.1978 would not apply so far as the petitioners are concerned. Therefore, what is important is the fact that there has been no change in the cadre.
I have came across a decision of this High Court, rendered by learned Single Judge(Coram: Hon'ble Mr. Justice M.R.Calla) in the case of Naranbhai D. Chamar V. D.D.O, Mehsana and ors reported in 1999 (2) GLH 364. Facts of this case were that the petitioner was initially appointed by the T.D.O., Chansma against the vacant post of Watchman in the office of the Taluka Panchayat. The office of the District Panchayat, looking to the financial position of the funds of the District Panchayat, resolved to abolish the post of Watchman. The request was made by the T.D.O. to the Development Commissioner for petitioner's absorption against the post of Peon and the Development Commissioner gave the sanction for petitioner's absorption as a peon on fulfilling the educational qualifications and accordingly the petitioner was appointed against the post of peon. One of the conditions in the appointment order was that his seniority as a peon shall be counted from the date of his appointment as a peon. Decision was taken by the T.D.O, Chansma that his past service will not be counted for the purpose of seniority, pension, pay, etc. This was made the subject matter of challenge in the petition. The learned single Judge went to the extent of holding that even if a person holding one post is declared surplus and absorbed against another post because the earlier post held by him is decided to be abolished, he cannot be deprived of the benefits of the service rendered on the post, which is abolished, irrespective of the nature of the appointment held by him. I would like to quote para 3 of the said judgment in which the learned Single Judge has observed and held as under:
“Besides this, in the orders, which have been placed on record, there is no mention that he has been denied the benefits of the past services because the initial appointment was irregular. Even if it is assumed, without admitting, for the sake of argument that the appointment, which was initially given to the petitioner, was not a regular appointment in the strict sense of the term, the fact remains that he was appointed on the basis of a selection through interviews as sponsored by the Employment Exchange and on that basis he had continued in the service as a Watchman for a period of nearly 16 years and even thereafter when the post of Watchman was abolished by the concerned Department, the Development Commissioner had sanctioned his absorption. In such case, when a person holding one post is declared surplus and absorbed against another post because the earlier post held by him is decided to be abolished, he cannot be deprived of the benefits of the service rendered on the post, which is abolished, irrespective of the nature of the appointment held by him. If at all the concerned Panchayat or the concerned Department thought that the petitioner's initial appointment was not in order, it would have been difficult for the Panchayat or the concerned Department to terminate the services of the petitioner after a period of 16 years and ignore the fact that his appointment had an element of selection based on interviews from amongst the candidates, who had been sponsored by the Employment Exchange. Even otherwise, if the services rendered by an employee for a period over 16 years are ordered to be forfeited for the purposes of seniority, pay and pension, it virtually amounts to the forfeiture of the services rendered by him for such a long period of 16 years, which is certainly a penalty and such penalty cannot be imposed against an employee without following the regular procedure prescribed under the Rules. So also this Court finds that the order, which was passed against the petitioner forfeiting his services of 16 years as Watchman, is on the face of it illegal and cannot be sustained in the eye of law. On that basis, the impugned orders emanating from the basic order dt.26.10.88 and the consequential orders dated 1.12.88, 23.6.92 and 4.12.93 are all found to be illegal, the same cannot be sustained in the eye of law and all these impugned orders are hereby quashed and set aside. There is no question of any recovery of the so called excess payments said to have been made to the petitioner and the petitioner is found to be entitled to all the consequential benefits for the past services rendered by him as a Watchman since the initial date of his appointment i.e. 21.8.71 for the purposes of pay, seniority, pension, etc., including the due increments for the period prior to the filing of the petition and after the filing of the petition, in accordance with law, as if the impugned orders had never been passed against him.“
4. I have also considered the contention of the learned AGP as regards non-joinder of necessary parties. It is no doubt true, as it is a settled position of law that Court would not decide a writ petition under Article-226 of the Constitution without the person who would be vitally affected by judgment being before it as respondents or atleast by some of them being before it as respondents in a representative capacity. However, in the present case, I do not find any substance in this preliminary objection as regards non-joinder of necessary parties because the juniors to the petitioners have already been promoted long time back and all that the present petitioners are praying for is to consider the question of seniority on the basis of their joining the service initially and grant them such benefits regarding seniority and promotion as if they had been continuously in service without a break. I am of the view that right from 1989 to 1999 i.e. almost for a period of 10 years from reappointment and 16 years from date of original appointment, the seniority list of the petitioners was very well maintained and it is only in 2001 that their seniority came to be disturbed taking into consideration the break in service for a period of 4 to 5 days way back in the year 1989.
5. In the result, the petition is allowed. A writ of certiorari shall issue quashing and setting aside communication dated 31/5/2000 Annexure-A to this petition and the orders at Annexure-H collectively are also quashed and set aside which excludes seniority while condoning break in service for all other purposes including leave, salary and pension. The respondents shall consider the question of seniority of the petitioners on the basis of their joining the service initially and grant them such other benefits regarding seniority and promotion as if they have been continuously in service without a break within a period of 3 months from today. Rule made absolute. However, in the facts and circumstances of the case there shall be no order as to costs.
(J.B.Pardiwala, J)
mehul