(PER : HONOURABLE MR.JUSTICE KS JHAVERI) ORDER IN CIVIL APPLICATION NO. 4989 OF 2015 Heard. In view of the averments made in the Page 1 of 7 C/CA/4989/2015 ORDER application, the delay caused in filing the appeal is required to be condoned. Accordingly, delay is condoned. Application is allowed accordingly.
ORDER IN LPA NO. 876 OF 2015 with CIVIL APPLICATION NO. 5433 OF 2015
1. The present appeal is filed challenging the judgement and order dated 13.08.2014 passed by the learned Single Judge in Special Civil Application No. 18815 of 2013 whereby the learned Single Judge allowed the writ petition.
2. The original petitioners present respondents, by way of the writ petition before the learned Single Judge, had challenged the order dated 22.10.2013 whereby the original petitioners were transferred from Ahmedabad to Botad by being termed as junior most employees in the establishment of Deputy Mamlatdar cadre at Ahmedabad. The learned Single Judge after hearing the parties, allowed the writ petition and observed that the order dated 22.10.2013 was contrary to the Government Resolution dated 10.10.2013. Being aggrieved by the same, the present appeal has been preferred.
3. Mr. Patel, learned advocate appearing for the appellants submitted that the learned Single Judge ought to have appreciated the fact that the State Government Resolution dated 10.10.2013 specifically provided that in case of non availability of sufficient number of employees after obtaining options, the junior most employees of Collector Office of Bhavnagar and Ahmedabad were to be allocated to Botad district. He submitted that on a perusal of the appointment Page 2 of 7 C/CA/4989/2015 ORDER order of the respondents, it is clear that the appointment of the respondents was transferable and therefore the order dated 22.10.2013 was passed after perusing the necessary guidelines of the State Government and therefore the same ought not to have been quashed and set aside.
4. Having heard learned advocate for the appellants and having gone through the records of the case, we are of the opinion that the learned Single Judge was justified in allowing the writ petition. The learned Single Judge has observed that the term junior-most employed in the said government resolution has to be read in terms of the employees forming part of the regular establishment, namely, those who form part of the seniority list and are junior-most therein. The petitioners, not being part of the regular establishment, would not fall within the ambit of the said government resolution. Under the circumstances, the respondents could not have allocated the petitioners to the newly formed district of Botad by resorting to the provisions of the Government Resolution dated 10.10.2013.
4.1 The learned Single Judge vide the impugned order has observed as under:
11.In this regard, a perusal of the impugned order dated 22 nd October, 2013 reveals that the same has been passed in the light of the Revenue Department resolution dated 10.10.2013 and the General Administration Department resolution dated 22.01.2009. In the affidavit-in-reply filed on behalf of the respondents, the stand taken is that the impugned order has been passed pursuant to the resolution dated 10.10.2013 issued by the Revenue Department of the State, which provides for allocation of only the junior-most employees in Page 3 of 7 C/CA/4989/2015 ORDER the newly constituted district. It would, therefore, be necessary to examine the contents of the Government Resolution dated 10.10.2013, a copy whereof has been annexed along with the affidavit-in-reply filed on behalf of the respondents. The said resolution provides that vide notification dated 13.08.2013, the districts of Bhavnagar and Ahmedabad have been bifurcated and a new district of Botad has been created. On account of the creation of a new district, from the Class III establishment of the districts of Bhavnagar and Ahmedabad, the following establishment is resolved to be transferred to the establishment of the Collector, Botad. Thereafter, a table indicating the description of Class III employees to be transferred to Botad has been set out. It is further provided in the said resolution that for the purpose of transferring the employees from Bhavnagar and Ahmedabad districts for the aforesaid posts in the establishment of Botad district, options shall be obtained and allocation of the employees shall be made in the district of Botad, and in case the number of employees who are willing to go to the new district are less, then the junior-most employees in the establishment of the offices of the Collector and Ahmedabad pro rata keeping in view the number of posts, shall be immediately allocated to the new district.
12.On a plain reading of the above government resolution, it is apparent that what the same envisages is that the employees in the regular establishment of the districts of Bhavnagar and Ahmedabad shall first be required to state their options for being allocated to the newly created district of Botad, and in case the number of such employees is less than the number required, the junior-most employees in the establishment of the offices of the Collector, at Bhavnagar and Ahmedabad shall be allocated to the newly formed district of Botad. Thus, the employees covered by the said government resolution clearly would be the employees on the regular establishment in the offices of the Collector, at Ahmedabad and Bhavnagar.
13.At this juncture, it may be germane to refer to the nature of engagement of the petitioners, as is borne out from the Government Resolution dated 04.06.2009 and the conditions of employment of the petitioners appended thereto. A plain reading of the Government Resolution dated 04.06.2009 reveals that the same provides for employment of Class III and Class IV employees on contractual basis on a fixed pay. The said government resolution further provides that the contractual appointments on fixed pay by way of direct recruitment shall be made in accordance with the recruitment rules as per the direct recruits/promotees ratio. However, such appointment shall be for a fixed period on Page 4 of 7 C/CA/4989/2015 ORDER contractual basis and the employees, who are appointed in this manner, shall not be entitled to any of the benefits which are available to the Government employees who are discharging duties in the regular pay scale. It is further provided that the services rendered during the course of contractual appointment shall not be taken into consideration for the purpose of seniority. However, when the contractual period of the employees so appointed is completed, he shall be appointed at the said post on regular pay scale and from that date, he shall be entitled to seniority in the said cadre. Even the conditions of contract appended along with the said government resolution clearly provide that the seniority of the employee who is employed on contractual basis shall be taken into consideration only upon completion of the contractual period and being placed in the regular pay scale. Thus, the petitioners are merely contractual employees and are not part of the regular establishment and their seniority is to be considered only upon their appointment in the regular pay scale pursuant to completion of their contractual period. The petitioners, therefore, are not employed in the regular establishment of the offices of the Collector, at Bhavnagar and Ahmedabad, and do not form part of the seniority list maintained in the said offices. When the petitioners do not form part of the seniority list, as a necessary corollary, the question of the petitioners being considered to be the junior-most would not arise.
14.Moreover, on a plain reading of the resolution dated 10.10.2013, it is apparent that the same envisages allocation of the employees on the regular establishment and in case, less than the requisite number of employees of their own opt for being allocated to the newly formed district, then the junior-most employees are required to be allocated to the said district. The term junior-most employed in the said government resolution has to be read in terms of the employees forming part of the regular establishment, namely, those who form part of the seniority list and are junior-most therein. The petitioners, not being part of the regular establishment, would not fall within the ambit of the said government resolution. Under the circumstances, the respondents could not have allocated the petitioners to the newly formed district of Botad by resorting to the provisions of the Government Resolution dated 10.10.2013. While it true that their orders of appointment do speak of the petitioners jobs being transferable, in the opinion of this court, in the present case, whereby the transfers have been made under the Government Resolution dated 10.10.2013, the petitioners could not have been considered to be part of the regular establishment at Ahmedabad and allocated to the new district Page 5 of 7 C/CA/4989/2015 ORDER of Botad.
15.Another notable aspect of the matter is that since the only mode of entry into Government service is by way of taking part in the direct recruitment made by the State Government for appointment on contractual basis for five years, inasmuch as, only thereafter would a candidate be entitled to be appointed on the regular pay scale in the said establishment. Since a candidate desirous of getting a Government job, has no option but to agree to appointment on contractual basis on a fixed pay instead of regular salary for the post, accordingly, the petitioners too have taken part in the recruitment process and have been appointed on contractual basis for a fixed period of five years. Upon completion of the period of five years, they would be given regular appointments against a sanctioned post and would be placed in the seniority list. The services rendered by them for the period of five years prior to such appointment on the regular pay scale, shall not be taken into consideration for the purpose of computing their seniority. The petitioners are, therefore, left with no choice but to compromise and work on a fixed pay basis for a pittance, without any other benefits associated with the Government services. This is a kind of exploitation on the part of the State Government, which the petitioners have to put up with, if they desire to get a regular job in the establishment of the Government. On the other hand, the regular employees on the establishment would be getting regular pay scales and other ancillary benefits like Government accommodation, House Rent Allowance, Transfer Allowance, etc. Therefore, upon being transferred / allocated to a new place, the employees on the regular pay scale would have to face fewer difficulties as compared to those engaged on fixed pay basis, as they would be entitled to several benefits, which those who have been engaged on contractual basis would not be entitled to. Therefore, apart from the fact that the Government Resolution dated 10.10.2013 covers only regular employees who are placed in the seniority list, the employees who are engaged on a contractual basis on a fixed pay would be barely in a position to manage as they would have to pay out of their own pockets for the accommodation etc., out of the meagre amount which is paid to them.
16.Moreover, as rightly urged by the learned advocate for the petitioners, as reflected in ground E of the memorandum of petition, for the cadre of Deputy Mamlatdar, the ratio of 3:1 between the promotees and direct recruits is required to be maintained. By allocating the petitioners to the Botad district, the ratio of direct recruits and promotees is also not maintained.
C/CA/4989/2015 ORDER
5. We are of the opinion that no illegality is committed by the learned Single Judge in passing the above order. We are in complete agreement with the reasonings adopted by the learned Single Judge. Moreover, when the original appointment order has been issued by the District Collector, Ahmedabad the employees cannot be transferred to another district. No other contention is raised. Appeal is therefore devoid of any merit and is accordingly dismissed. Civil Application also stands disposed of accordingly.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 7 of 7